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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):
May 24, 2024
ADT Inc.
(Exact name of Registrant as specified in its charter)
Delaware 001-38352 47-4116383
(State of (Commission (I.R.S. Employer
Incorporation) File Number) Identification No.)
1501 Yamato Road
Boca Raton
,
Florida
33431
(Address of principal executive offices)
(
561
)
988-3600
(Registrant's telephone number, includingarea code)
(Former Name or Former Address, if Changed SinceLast Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneouslysatisfy the filing obligation of the Registrant under any of the
following provisions:
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 Name of each exchange
Symbol(s) on which registered
Common Stock, par value $0.01 per share ADT New York Stock Exchange
Indicate by check mark whether the Registrant is an emerging growth companyas
defined in Rule 405 of the Securities Act of 1933 (17 CFR (s)230.405) or Rule
12b-2 of the Securities Exchange Act of 1934 (17 CFR(s)240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check mark if the Registranthas
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuantto Section 13(a) of
the Exchange Act.
Item 1.01. Entry into a Material Definitive Agreement
Credit Agreement Amendment
On May 24, 2024 (the "
Closing Date
"), Prime SecurityServices Borrower, LLC, a Delaware limited liability company
("
Prime Borrower
"), Prime Security Services Holdings,LLC, a Delaware limited liability company
("
Holdings
"), and The ADT Security Corporation, a Delaware corporation ("
ADTSC
"and together with Prime Borrower, the "
Borrowers
"), each a direct or indirect wholly owned subsidiary of ADT Inc. ("
ADT
,"the "
Company
," "
we
" and "
our
"), entered into that certain Incremental Assumptionand Amendment Agreement
No. 16 (the "
Credit Agreement Amendment
"), by and among Prime Borrower, as borrower, Holdings,ADTSC, as co-borrower,
the subsidiary loan parties party thereto, the lenders party thereto and
Barclays Bank PLC, as administrative agent(the "
Administrative Agent
"), which amends and restates that certain Fifteenth Amended and Restated
First Lien CreditAgreement, dated as of July 1, 2015, as amended and restated
on May 2, 2016, June 23, 2016, December 28, 2016, February 13, 2017, June29,
2017, March 16, 2018, December 3, 2018, March 15, 2019 (effective April 4,
2019), September 23, 2019, January 27, 2021, July 2, 2021,May 10, 2023
(effective July 1, 2023), October 13, 2023, April 15, 2024 and May 15, 2024
(the "
Existing Credit Agreement
"),by and among Prime Borrower, as borrower, Holdings, ADTSC, as co-borrower,
the lenders party thereto, the Administrative Agent and theother parties named
therein (as amended and restated by the Credit Agreement Amendment, the "
Amended and Restated Credit Agreement
").
On the Closing Date, pursuant to the Credit Agreement Amendment,the Borrowers
incurred $474,299,679.45 aggregate principal amount of incremental first lien
senior secured term B-1 loans pursuant tothe Existing Credit Agreement (the "
May 2024 Incremental Term B-1 Loans
"), the proceeds of which were used to refinancein full the $474,299,679.45
aggregate principal amount of first lien senior secured term A loans
outstanding under that certain Term LoanCredit Agreement, dated as of March
14, 2023, as amended as of March 14, 2023 (the "
TLA Credit Agreement
"), by andamong Prime Borrower, as borrower, Holdings, ADTSC, as co-borrower,
the lenders party thereto and Barclays Bank PLC, as administrativeagent. After
giving effect to the transactions contemplated by the Credit Agreement
Amendment, $1,989,062,500 aggregate principal amountof first lien senior
secured term B-1 loans are outstanding under the Amended and Restated Credit
Agreement and the TLA Credit Agreementhas been terminated.
The May 2024 Incremental Term B-1 Loans have the same terms as,and constitute
one class with, the term B-1 loans outstanding under the Existing Credit
Agreement immediately prior to the Closing Date.Additionally, the parties to
the Amended and Restated Credit Agreement continue to have the same
obligations set forth in the ExistingCredit Agreement.
The foregoing description of the Credit Agreement Amendment andthe Amended and
Restated Credit Agreement does not purport to be complete and is subject to,
and qualified in its entirety by referenceto the full text of the Credit
Agreement Amendment, a copy of which is filed as Exhibit 10.1 hereto and
incorporated by reference herein,and the full text of the Amended and Restated
Credit Agreement, a copy of which is attached as Annex A to the Credit
Agreement Amendmentand incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated intothis Item 2.03
by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Description
10.1 Incremental Assumption and Amendment Agreement No. 16, dated as of May 24, 2024,
by and among Prime Security Services Holdings, LLC, Prime Security Services
Borrower, LLC, The ADT Security Corporation, the subsidiary loan parties party
thereto, the lenders party thereto and Barclays Bank PLC, as administrative agent.
104 Cover Page Interactive Data File (embedded
within the Inline XBRL document).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
theregistrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 24, 2024 ADT Inc.
By: /s/ Jeffrey Likosar
Jeffrey Likosar
President, Corporate Development and Transformation, and Chief Financial Officer
EXHIBIT 10.1
Execution Version
INCREMENTAL ASSUMPTION AND AMENDMENT AGREEMENTNO. 16
Dated as ofMay 24, 2024
among
PRIME SECURITYSERVICES HOLDINGS, LLC,
as Holdings,
PRIME SECURITY SERVICESBORROWER, LLC
and
THE ADT SECURITYCORPORATION,
as Borrowers,
THE SUBSIDIARYLOAN PARTIES PARTY HERETO,
THE LENDERSPARTY HERETO,
and
BARCLAYSBANK PLC,
as Administrative Agent
_________________
DEUTSCHE BANK SECURITIES INC.,
as Sole Lead Arranger and Bookrunner,
_________________
DEUTSCHE BANKSECURITIES INC.,
as SyndicationAgent and Documentation Agent
_________________
INCREMENTAL ASSUMPTION AND AMENDMENT AGREEMENT NO.16
This INCREMENTAL ASSUMPTIONAND AMENDMENT AGREEMENT NO. 16 (this "
Agreement
"), dated as of May 24, 2024, is made by and among Prime SecurityServices
Holdings, LLC, a Delaware limited liability company ("
Holdings
"), Prime Security Services Borrower,LLC, a Delaware limited liability company
(the "
Borrower
"), The ADT Security Corporation, a Delaware corporation("
ADTSC
" or the "
Co-Borrower
" and, together with the Borrower, the "
Borrowers
"),each "Subsidiary Loan Party" listed on the signature pages hereto (each, a "
Subsidiary Loan Party
"and, collectively, the "
Subsidiary Loan Parties
"), Barclays Bank PLC, as Administrative Agent under the ExistingCredit
Agreement (as defined below) (in such capacity, the "
Administrative Agent
") and each of the Lenders partyhereto.
PRELIMINARY STATEMENTS:
(1) Holdings,the Borrower, ADTSC, the Lenders party thereto from time to
time and the Administrative Agent are party to that certain Fifteenth
Amendedand Restated First Lien Credit Agreement, dated as of July 1, 2015, as
amended and restated on May 2, 2016, June 23, 2016, December 28,2016, February
13, 2017, June 29, 2017, March 16, 2018, December 3, 2018, March 15, 2019
(effective as of April 4, 2019), September 23,2019, January 27, 2021, July 2,
2021, May 10, 2023, October 13, 2023, April 15, 2024 and May 15, 2024 (as may
be further amended, restated,supplemented, waived or otherwise modified from
time to time prior to the Effective Date (as defined below), the "
ExistingCredit Agreement
").
(2) The Borrowers haverequested that the May 2024 Incremental Term B-1
Lenders (as defined below) provide, pursuant to Section 2.21(a) of the
Existing CreditAgreement, May 2024 Incremental Term B-1 Loans (as defined
below) in an aggregate principal amount of $474,299,679.45, the proceeds
ofwhich will be used to refinance in full the Borrowers' Term A Loans (as
defined below) and to pay fees and expenses incurred inconnection with this
Agreement and the transactions contemplated hereby.
(3) EachMay 2024 Incremental Term B-1 Lender who executes and delivers
this Agreement as a May 2024 Incremental Term B-1 Lender will make May2024
Incremental Term B-1 Loans on the Effective Date to the Borrowers in an
aggregate principal amount equal to its May 2024 IncrementalTerm B-1 Loan
Commitment (as defined below).
(4) Withrespect to the May 2024 Incremental Term B-1 Loan Commitments,
(i) Deutsche Bank Securities Inc. will act as the sole lead arranger
andbookrunner and (ii) Deutsche Bank Securities Inc. will act as documentation
agent and syndication agent.
(5) TheAdministrative Agent, Holdings, the Borrowers and the Lenders
party hereto desire to memorialize the terms of this Agreement by amendingand
restating, in accordance with Section 9.08 of the Existing Credit Agreement,
the Existing Credit Agreement to reflect the existenceand terms of the May
2024 Incremental Term B-1 Loans, such amendment and restatement to become
effective at the Amendment Effective Time(as defined below).
NOW, THEREFORE, in considerationof the mutual agreements herein contained and
for other good and valuable consideration, the sufficiency and receipt of
which are hereby
1
acknowledged, and subject to the conditionsset forth herein, the parties
hereto hereby agree as follows:
section1.
Defined Terms
.Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Amended and Restated Credit Agreement(as defined
below). In addition, as used in this Agreement, the following terms have the
meanings specified:
"
Existing TermB-1 Loans
" shall mean Term B-1 Loans (as defined in the Existing Credit Agreement)
outstanding under the Existing CreditAgreement immediately prior to the
Effective Date.
"
May 2024 IncrementalTerm B-1 Lender
" shall mean a Lender with a May 2024 Incremental Term B-1 Loan Commitment.
"
May 2024 IncrementalTerm B-1 Loan Commitment
" shall mean, with respect to each May 2024 Incremental Term B-1 Lender, the
commitment of suchMay 2024 Incremental Term B-1 Lender to make May 2024
Incremental Term B-1 Loans to the Borrowers on the Effective Date. The amount
ofeach Lender's May 2024 Incremental Term B-1 Loan Commitment as of the
Effective Date is set forth on
Schedule 1
hereto. Theaggregate amount of the May 2024 Incremental Term B-1 Loan
Commitments of all May 2024 Incremental Term B-1 Lenders as of the
EffectiveDate is $474,299,679.45.
"
May 2024 IncrementalTerm B-1 Loans
" shall mean the Loans made pursuant to
Section 2
of this Agreement.
"
Term A Loans
"shall mean the Term A Loans outstanding under (and as defined in) that
certain Term Loan Credit Agreement, dated as of March 14, 2023,as amended as
of March 14, 2023 (as may be further amended, restated, supplemented, waived
or otherwise modified from time to time), byand among Holdings, the Borrowers,
Barclays Bank PLC, as administrative agent, and each of the lenders party
thereto from time to time,immediately prior to the Effective Date.
section2.
May 2024 IncrementalTerm B-1 Loan Commitments; May 2024 Incremental Term B-1
Loans
. On the Effective Date, each of the May 2024 Incremental Term B-1
Lendersagrees to make May 2024 Incremental Term B-1 Loans to the Borrowers in
a principal amount not to exceed such May 2024 Incremental TermB-1 Lender's
May 2024 Incremental Term B-1 Loan Commitment, with such May 2024 Incremental
Term B-1 Loans having terms identicalto the Existing Term B-1 Loans. Unless
previously terminated, the May 2024 Incremental Term B-1 Loan Commitments
shall terminate at 11:59p.m., New York City time, on the Effective Date. The
May 2024 Incremental Term B-1 Loans shall be one Class with, and increase the
amountof, the Existing Term B-1 Loans.
section3.
Requestsfor May 2024 Incremental Term B-1 Loans
. To request a Borrowing of May 2024 Incremental Term B-1 Loans on the
Effective Date, theBorrowers shall notify the Administrative Agent of such
request in writing not later than 1:00 p.m., New York City time, one
BusinessDay prior to the Effective Date (or such later time as the
Administrative Agent may agree).
2
SECTION 4.
Representationsand Warranties
. Each Loan Party represents and warrants to the other parties hereto that, as
of the Effective Date:
(a) this Agreement has beenduly authorized, executed and delivered by
such Loan Party and constitutes the legal, valid and binding obligation of
such Loan Partyenforceable against such Loan Party in accordance with its
terms, subject to (i) the effects of bankruptcy, insolvency, moratorium,
reorganization,fraudulent conveyance or other similar laws affecting
creditors' rights generally, (ii) general principles of equity (regardlessof
whether such enforceability is considered in a proceeding in equity or at law)
and (iii) implied covenants of good faith and fair dealing;
(b) therepresentations and warranties of such Loan Party contained in
the Loan Documents are true and correct in all material respects on andas of
the Effective Date (both before and after giving effect to the Borrowing of
the May 2024 Incremental Term B-1 Loans) with the sameeffect as though made on
and as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlierdate (in which case such
representations and warranties were true and correct in all material respects
as of such earlier date);
(c) theexecution, delivery and performance by each Loan Party of this
Agreement will not (i) violate (A) any provision of law, statute, ruleor
regulation applicable to such Loan Party, (B) the certificate or articles of
incorporation or other constitutive documents (includingany partnership,
limited liability company or operating agreements) or by-laws of such Loan
Party, (C) any applicable order of any courtor any rule, regulation or order
of any Governmental Authority applicable to such Loan Party or (D) any
provision of any indenture, certificateof designation for preferred stock,
agreement or other instrument to which such Loan Party is a party or by which
such Loan Party or anyof its property is or may be bound, (ii) result in a
breach of or constitute (alone or with due notice or lapse of time or both) a
defaultunder, give rise to a right of or result in any cancellation or
acceleration of any right or obligation (including any payment) underany such
indenture, certificate of designation for preferred stock, agreement or other
instrument, where any such conflict, violation,breach or default referred to
in clause (i) or this clause (ii) would reasonably be expected to have,
individually or in the aggregate,a Material Adverse Effect, or (iii) result in
the creation or imposition of any Lien upon or with respect to (x) any
property or assetsnow owned or hereafter acquired by such Loan Party (other
than Holdings), other than the Liens created by the Loan Documents and
PermittedLiens, or (y) any Equity Interests of the Borrower now owned or
hereafter acquired by Holdings, other than Liens created by the Loan
Documentsor Liens permitted by Article VIA of the Amended and Restated Credit
Agreement; and
(d) atthe time of and immediately after giving effect to this Agreement
(including the Borrowing of the May 2024 Incremental Term B-1 Loansand the
application of the proceeds therefrom), no Default or Event of Default has
occurred and is continuing under the Existing CreditAgreement or shall result
from this Agreement.
section5.
Conditionsof Lending
. The obligations of the May 2024 Incremental Term B-1 Lenders to make the May
2024 Incremental Term B-1 Loans on the EffectiveDate are subject to the
satisfaction (or waiver in accordance with Section 9.08 of the Existing Credit
Agreement) of the following conditions(the date of such satisfaction or
waiver, the "
Effective Date
"):
3
(a)
The Administrative Agent (or its counsel) shall have received (i) from each
May 2024 Incremental Term B-1 Lender and (ii) fromeach of Holdings, the
Borrowers and the Subsidiary Loan Parties, either (x) a counterpart of this
Agreement signed on behalf ofsuch party or (y) written evidence reasonably
satisfactory to the Administrative Agent (which may include delivery of a
signed signaturepage of this Agreement by facsimile or other means of
electronic transmission (e.g., "pdf")) that such party has signed acounterpart
of this Agreement.
(b)
The Administrative Agent shall have received a certificate of the Secretary or
Assistant Secretary or Responsible Officer of eachLoan Party dated the
Effective Date:
(i)
either (x) attaching a copy of the certificate or articles of incorporation,
certificate of limited partnership, certificate offormation or other
equivalent constituent and governing documents, including all amendments
thereto, of such Loan Party, certified asof a recent date by the Secretary of
State (or other similar official) of the jurisdiction of its organization or
(y) certifying thatthere have been no changes to the certificate or articles
of incorporation, certificate of limited partnership, certificate of
formationor other equivalent constituent and governing documents of such Loan
Party since the Fifteenth Incremental Assumption and Amendment AgreementEffectiv
e Date;
(ii) attaching a certificate as to the good standing (to the extent such
concept or a similar concept exists under the laws of suchjurisdiction) of
such Loan Party as of a recent date from such Secretary of State (or other
similar official);
(iii) either (x) certifying that attached thereto is a true and complete
copy of the by-laws (or partnership agreement, limited liabilitycompany
agreement or other equivalent constituent and governing documents) of such
Loan Party as in effect on the Effective Date and atall times since a date
prior to the date of the resolutions described in clause (iv) below or (y)
certifying that there havebeen no changes to the by-laws (or partnership
agreement, limited liability company agreement or other equivalent constituent
and governingdocuments) of such Loan Party since the Fifteenth Incremental
Assumption and Amendment Agreement Effective Date;
(iv) certifying that attached thereto is a true and complete copy of
resolutions duly adopted by the executive committee of the boardof managers or
Board of Directors (or equivalent governing body), as applicable, of such Loan
Party (or its managing general partner ormanaging member) authorizing the
execution, delivery and performance of the Loan Documents executed in
connection with this Agreementto which such Loan Party is a party and, in the
case of the Borrowers, the Borrowings hereunder, and that such resolutions
have not beenmodified, rescinded or amended and are in full force and effect
on the Effective Date;
(v) either (x) certifying as to the incumbency and specimen signature of
each officer executing any Loan Document executed in connectionwith this
Agreement on behalf of such Loan Party or (y) with respect to any Loan Party
other than the Borrowers or Holdings, certifyingthat there have been no
changes to the incumbency and specimen signature of each officer executing any
Loan Document executed in connectionwith this
4
Agreement on behalf of such Loan Partysince the Fifteenth Incremental
Assumption and Amendment Agreement Effective Date; and
(vi)
certifying as to the absence of any pending proceeding for the dissolution or
liquidation of such Loan Party or, to the knowledgeof such person, threatening
the existence of such Loan Party.
(c)
The Administrative Agent shall have received, on behalf of itself and the May
2024 Incremental Term B-1 Lenders, a written opinionof Paul, Weiss, Rifkind,
Wharton & Garrison LLP (A) dated the Effective Date, (B) addressed to the
Administrative Agentand the May 2024 Incremental Term B-1 Lenders on the
Effective Date and (C) in form and substance reasonably satisfactory to
theAdministrative Agent covering such matters relating to this Agreement as
the Administrative Agent shall reasonably request.
(d) The Administrative Agent shall have received all fees payable
thereto on or prior to the Effective Date and, to the extent invoicedat least
three Business Days prior to the Effective Date, reimbursement or payment of
all reasonable and documented out-of-pocket expenses(including reasonable and
documented fees, charges and disbursements of Cahill Gordon & Reindel
LLP
)required to be reimbursed or paid by the Loan Parties hereunder or under any
Loan Document on or prior to the Effective Date (which amountsmay be offset
against the proceeds of the May 2024 Incremental Term B-1 Loans made
hereunder).
(e) [Reserved].
(f) The Borrower shall have delivered to the Administrative Agent a
certificate from a Responsible Officer of the Borrower, dated asof the
Effective Date, to the effect set forth in Sections
4(b)
and
4(d)
hereof.
section6.
Consent andAffirmation of the Loan Parties
. Each of (a) the Subsidiary Loan Parties, in its capacity as a guarantor
under the SubsidiaryGuarantee Agreement, a pledgor under the Security
Documents to which such Subsidiary Loan Party is a party and as a Loan Party
under eachother Loan Document to which such Subsidiary Loan Party is a party,
(b) Holdings, in its capacity as guarantor and pledgor underthe Holdings
Guarantee and Pledge Agreement and as a Loan Party under each other Loan
Document to which Holdings is a party and (c) theBorrower and the Co-Borrower,
in its capacity as a pledgor under the Collateral Agreement and each other
Security Document to which theBorrower and the Co-Borrower is a party and as a
Loan Party under each other Loan Document to which the Borrower and the
Co-Borrower isa party, hereby (i) consents to the execution, delivery and
performance of this Agreement and agrees that each of the Subsidiary
GuaranteeAgreement, the Holdings Guarantee and Pledge Agreement, the other
Security Documents and the other Loan Documents, in each case, to whichit is a
party is, and shall continue to be, in full force and effect and is hereby in
all respects ratified and confirmed on the EffectiveDate, except that, on and
after the Amendment Effective Time, each reference to "
Credit Agreement
", "
FirstLien Credit Agreement
", "
thereunder
", "
thereof
" or words of like import shall, unlessthe context otherwise requires, mean
and be a reference to the Amended and Restated Credit Agreement, (ii) ratifies
and confirms thatthe Security Documents to which it is a party and all of the
Collateral described therein do, and shall continue to, secure the paymentof
all of the
5
Obligations and (iii) ratifies and confirmsthat, with respect to each
Subsidiary Loan Party, the Subsidiary Guarantee Agreement, and with respect to
Holdings, the Holdings Guaranteeand Pledge Agreement, and all of the
obligations described therein do, and shall continue to, guarantee the payment
of all of the Obligations.
section7.
Amendmentand Restatement of the Existing Credit Agreement
. Immediately after the funding of the May 2024 Incremental Term B-1 Loans on
theEffective Date pursuant to
Section 5
hereof (such time, the "
Amendment Effective Time
"), the ExistingCredit Agreement shall be amended and restated in its entirety
to reflect the existence and terms of the May 2024 Incremental Term B-1Loans
as set forth on Annex A hereto (the Existing Credit Agreement, as so amended
and restated, the "
Amended and RestatedCredit Agreement
").
section8.
Referenceto and Effect on the Loan Documents
. (a) On and after the Amendment Effective Time, each reference in the Amended
and Restated CreditAgreement to "
hereunder
", "
hereof
", "
Agreement
", "
this Agreement
"or words of like import and each reference in the other Loan Documents to "
Credit Agreement
", "
First LienCredit Agreement
", "
thereunder
", "
thereof
" or words of like import shall, unless the contextotherwise requires, mean
and be a reference to the Amended and Restated Credit Agreement. From and
after the Amendment Effective Time,this Agreement shall be a Loan Document
under the Existing Credit Agreement and the Amended and Restated Credit
Agreement.
(b)
The Security Documents and each other Loan Document, as specifically amended
by this Agreement, are and shall continue to be infull force and effect and
are hereby in all respects ratified and confirmed, and the respective
guarantees, pledges, grants of securityinterests and other agreements, as
applicable, under each of the Security Documents, notwithstanding the
consummation of the transactionscontemplated hereby, shall continue to be in
full force and effect and shall accrue to the benefit of the Secured Parties
under the ExistingCredit Agreement and the Amended and Restated Credit
Agreement. Without limiting the generality of the foregoing, the Security
Documentsand all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under theLoan
Documents, in each case, as amended by this Agreement.
(c) The execution, delivery and effectiveness of this Agreement shall
not, except as expressly provided herein, operate as a waiverof any right,
power or remedy of any Lender or the Administrative Agent under any of the
Loan Documents, nor constitute a waiver of anyprovision of any of the Loan
Documents.
(d) This Agreement shall constitute an "Incremental Assumption
Agreement", the May 2024 Incremental Term B-1 Lenders shallconstitute
"Incremental Term Lenders" and "Lenders", the May 2024 Incremental Term B-1
Loans shall constitute"Incremental Term Loans", "Incremental Loans", "Term B-1
Loans", "Term Loans" and "Loans",and the May 2024 Incremental Term B-1 Loan
Commitments shall constitute "Incremental Term Loan Commitments",
"IncrementalCommitments", "Term Facility Commitments" and "Commitments", in
each case, for all purposes of the Amendedand Restated Credit Agreement and
the other Loan Documents.
6
(e) This Agreement shall constitute notice to the Administrative Agent
required under Section 2.21(a) of the Existing Credit Agreementand the
Administrative Agent acknowledges and agrees that such notice period is
satisfactory.
section9.
Certain TaxMatters
. For the avoidance of doubt, the parties intend to treat all Existing Term
B-1 Loans and May 2024 Incremental Term B-1 Loansas a single fungible tranche
of indebtedness for U.S. federal income tax purposes.
section10.
Expenses; Indemnity
. The Borrowersagree and acknowledge that Section 9.05 of the Existing Credit
Agreement applies to this Agreement and the transactions, agreements
anddocuments contemplated hereunder, which shall be incorporated herein,
mutatis mutandis
, to the same extent as if more fully setforth herein.
section11.
Execution in Counterparts
. ThisAgreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which whenso executed shall
be deemed to be an original and all of which taken together shall constitute
but one and the same agreement. The words"execution," "signed," "signature,"
"delivery," and words of like import in or relatingto this Agreement and/or
any document to be signed in connection with this Agreement and the
transactions contemplated hereby shall bedeemed to include Electronic
Signatures (as defined below), deliveries or the keeping of records in
electronic form, each of which shallbe of the same legal effect, validity or
enforceability as a manually executed signature, physical delivery thereof or
the use of a paper-basedrecordkeeping system, as the case may be, to the
extent and as provided for in any applicable Law, including the Federal
Electronic Signaturesin Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws basedon
the Uniform Electronic Transactions Act, and the delivery of an executed
counterpart of a signature page of this Agreement or anyamendment or
modification hereof by any such means (including ".pdf" or ".tif") shall be
effective as deliveryof a manually executed counterpart. "
Electronic Signatures
" means any electronic symbol or process attachedto, or associated with, any
contract or other record and adopted by a person with the intent to sign,
authenticate or accept such contractor record.
section12.
Amendments; Headings; Severability
.This Agreement may not be amended nor may any provision hereof be waived
except as set forth in Section 9.08 of the Amended and RestatedCredit
Agreement. The Section headings used herein are for convenience of reference
only, are not part of this Agreement and are not toaffect the construction of,
or to be taken into consideration in interpreting this Agreement. Any
provision of this Agreement held tobe invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity,illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof, and
theinvalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The partiesshall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions, the economiceffect of which comes as close
as possible to that of the invalid, illegal or unenforceable provisions.
section13.
Governing Law; Etc
.
7
(a)
THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSES OF ACTION
(WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON,ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK,WITHOUT REGARD TO ANY PRINCIPLE OF
CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW.
(b) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTIONS 9.11 AND
9.15 OF THE EXISTING CREDIT AGREEMENT AS IF SUCH SECTIONS WERESET FORTH IN
FULL HEREIN.
section14.
No Novation
. This Agreement shallnot extinguish the obligations for the payment of money
outstanding under the Existing Credit Agreement or any other Loan Document
ordischarge or release any Lien or priority of or under any Security Document
or any other security therefor. Nothing herein contained shallbe construed as
a substitution or novation of the obligations outstanding under the Existing
Credit Agreement or any other Loan Documentor instruments securing the same,
which shall remain in full force and effect, except to any extent modified
hereby or by instrumentsexecuted concurrently herewith and except to the
extent repaid as provided herein. Nothing implied in this Agreement or in any
other documentcontemplated hereby shall be construed as a release or other
discharge of any of the Loan Parties under any Loan Document from any ofits
obligations and liabilities as a borrower, guarantor or pledgor under any of
the Loan Documents.
section15.
Notices
. All notices hereundershall be given in accordance with the provisions of
Section 9.01 of the Amended and Restated Credit Agreement.
[Signature Pages Follow]
8
IN WITNESS WHEREOF, the partieshereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
HOLDINGS
:
PRIME SECURITY SERVICESHOLDINGS, LLC
, a Delaware limited liability company
By: /s/ Deepika Yelamanchi
Name: Deepika Yelamanchi
Title: Senior Vice President & Treasurer
BORROWERS
:
PRIME SECURITY SERVICESBORROWER, LLC, a Delaware limited liability company
By: /s/ Deepika Yelamanchi
Name: Deepika Yelamanchi
Title: Senior Vice President & Treasurer
THE ADT SECURITYCORPORATION,
a Delaware corporation
By: /s/ Deepika Yelamanchi
Name: Deepika Yelamanchi
Title: Senior Vice President & Treasurer
[Incremental Assumption and Amendment Agreement No.16 Signature Page]
SUBSIDIARYLOAN PARTIES:
ADT LLC
ADT INNOVATION LLC
ADT SOLAR LLC
BUILDPRO, L.L.C.
COMPASS SOLAR GROUP, LLC
ENERGYPRO LLC
I-VIEW NOW LLC
PRIME FINANCE INC.
SECURITY MONITORING SERVICES, INC.
By: /s/ Deepika Yelamanchi
Name: Deepika Yelamanchi
Title: Senior Vice President & Treasurer
[Incremental Assumption and Amendment Agreement No.16 Signature Page]
BARCLAYS BANK PLC, as AdministrativeAgent
By: /s/ Charlene Saldanha
Name: Charlene Saldanha
Title: Vice President
[Incremental Assumption and Amendment Agreement No.16 Signature Page]
DEUTSCHE BANK AG NEW YORK BRANCH, asa May 2024 Incremental Term B-1 Lender
By: /s/ Philip Tancorra
Name: Philip Tancorra
Title: Director
By: /s/ Lauren Danbury
Name: Lauren Danbury
Title: Vice President
[Incremental Assumption and Amendment Agreement No.16 Signature Page]
SCHEDULE 1
May 2024 Incremental Term B-1 Loan Commitments
May 2024 Incremental Term B-1 Lender May 2024 Incremental Term B-1 Loan Commitment
Deutsche Bank AG New York Branch $474,299,679.45
Total: $474,299,679.45
ANNEX A
[See attached.]
Annex A
SIXTEENTHAMENDED AND RESTATED
FIRST LIEN CREDIT AGREEMENT
dated as ofJuly 1, 2015
as amendedand restated as of May 2, 2016
as furtheramended and restated as of June 23, 2016
as furtheramended and restated as of December 28, 2016
as furtheramended and restated as of February 13, 2017
as furtheramended and restated as of June 29, 2017
as furtheramended and restated as of March 16, 2018
as furtheramended and restated as of December 3, 2018
as furtheramended and restated as of March 15, 2019
as furtheramended and restated as of September 23, 2019
as furtheramended and restated as of January 27, 2021
as furtheramended and restated as of July 2, 2021
as furtheramended and restated as of May 10, 2023
as furtheramended and restated as of October 13, 2023
as furtheramended and restated as of April 15, 2024
as furtheramended and restated as of May 15, 2024
as furtheramended and restated as of May 24, 2024
among
PRIME SECURITYSERVICES HOLDINGS, LLC,
as Holdings,
PRIME SECURITYSERVICES BORROWER, LLC,
and
THE ADT SECURITYCORPORATION,
as Borrowers,
THE LENDERSPARTY HERETO,
and
BARCLAYS BANKPLC,
as Administrative Agent,
_________________
BARCLAYS BANKPLC,
DEUTSCHE BANKSECURITIES INC.,
MIZUHO BANK,LTD.,
RBC CAPITALMARKETS, LLC,
CITIGROUP GLOBALMARKETS INC.,
MORGAN STANLEYSENIOR FUNDING, INC.,
MUFG BANK,LTD.,
BNP PARIBASSECURITIES CORP.
and
CITIZENS BANK,N.A.,
as Joint Lead Arrangers and Joint Bookrunners,
_________________
APOLLO GLOBALSECURITIES, LLC,
FIFTH THIRDBANK, NATIONAL ASSOCIATION
and
ING CAPITALLLC,
as Co-Manager,
_________________
BARCLAYS BANKPLC,
DEUTSCHE BANKSECURITIES INC.,
APOLLO GLOBALSECURITIES, LLC,
MIZUHO BANK,LTD.,
RBC CAPITALMARKETS, LLC,
CITIGROUP GLOBALMARKETS INC.,
MORGAN STANLEYSENIOR FUNDING, INC.,
MUFG BANK,LTD.,
BNP PARIBASSECURITIES CORP.,
CITIZENS BANK,N.A.,
FIFTH THIRDBANK, NATIONAL ASSOCIATION
and
ING CAPITALLLC,
as SyndicationAgents and Documentation Agents
TABLE OF CONTENTS
Page
Article I Definitions 3
Section 1.01 Defined Terms 3
Section 1.02 Terms Generally 77
Section 1.03 Effectuation of Transactions 78
Section 1.04 Exchange Rates; Currency Equivalents 78
Section 1.05 Additional Alternate Currencies for Loans 78
Section 1.06 Change of Currency 79
Section 1.07 Timing of Payment or Performance 79
Section 1.08 Times of Day 79
Section 1.09 Co-Borrowers; The Administrative Borrower. 79
Article II The Credits 80
Section 2.01 Commitments 80
Section 2.02 Loans and Borrowings 81
Section 2.03 Requests for Borrowings 82
Section 2.04 Swingline Loans 83
Section 2.05 Letters of Credit 84
Section 2.06 Funding of Borrowings 90
Section 2.07 Interest Elections 91
Section 2.08 Termination and Reduction of Commitments 92
Section 2.09 Repayment of Loans; Evidence of Debt 92
Section 2.10 Repayment of Term Loans and Revolving Facility Loans 93
Section 2.11 Prepayment of Loans 94
Section 2.12 Fees 96
Section 2.13 Interest 98
Section 2.14 Alternate Rate of Interest 98
Section 2.15 Increased Costs 101
Section 2.16 Break Funding Payments 102
Section 2.17 Taxes 102
Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs 106
Section 2.19 Mitigation Obligations; Replacement of Lenders 107
Section 2.20 Illegality 109
Section 2.21 Incremental Commitments 109
Section 2.22 Defaulting Lender 118
Article III Representations and Warranties 120
Section 3.01 Organization; Powers 120
Section 3.02 Authorization 120
Section 3.03 Enforceability 120
Section 3.04 Governmental Approvals 121
Section 3.05 Financial Statements 121
Section 3.06 No Material Adverse Effect 121
Section 3.07 Title to Properties; Possession Under Leases 121
Section 3.08 Subsidiaries 122
Section 3.09 Litigation; Compliance with Laws 122
ix
Section 3.10 Federal Reserve Regulations 122
Section 3.11 Investment Company Act 122
Section 3.12 Use of Proceeds 122
Section 3.13 Tax Returns 123
Section 3.14 No Material Misstatements 123
Section 3.15 Employee Benefit Plans 124
Section 3.16 Environmental Matters 124
Section 3.17 Security Documents 124
Section 3.18 Location of Real Property 125
Section 3.19 Solvency 125
Section 3.20 Labor Matters 126
Section 3.21 Insurance 126
Section 3.22 No Default 126
Section 3.23 Intellectual Property; Licenses, Etc. 126
Section 3.24 Senior Debt 126
Section 3.25 USA PATRIOT Act; OFAC 127
Section 3.26 Foreign Corrupt Practices Act 127
Article IV Conditions of Lending 127
Section 4.01 All Credit Events 128
Article V Affirmative Covenants 128
Section 5.01 Existence; Business and Properties 128
Section 5.02 Insurance 129
Section 5.03 Taxes 130
Section 5.04 Financial Statements, Reports, etc. 130
Section 5.05 Litigation and Other Notices 132
Section 5.06 Compliance with Laws 132
Section 5.07 Maintaining Records; 133
Access to Properties and Inspections
Section 5.08 Use of Proceeds 133
Section 5.09 Compliance with Environmental Laws 133
Section 5.10 Further Assurances; Additional Security 133
Section 5.11 Rating 136
Section 5.12 Post-Closing 136
Article VI Negative Covenants 136
Section 6.01 Indebtedness 136
Section 6.02 Liens 142
Section 6.03 Sale and Lease-Back Transactions 147
Section 6.04 Investments, Loans and Advances 148
Section 6.05 Mergers, Consolidations, 152
Sales of Assets and Acquisitions
Section 6.06 Dividends and Distributions 155
Section 6.07 Transactions with Affiliates 158
Section 6.08 Business of the Borrower and the Subsidiaries 160
Section 6.09 Limitation on Payments and Modifications of Indebtedness; Modifications 161
of Certificate of Incorporation,By-Laws and Certain Other Agreements; etc.
Section 6.10 Fiscal Year 164
Section 6.11 Financial Covenant 164
x
ARTICLE VIA Holdings Negative Covenants 164
Article VII Events of Default 164
Section 7.01 Events of Default 164
Section 7.02 Treatment of Certain Payments 167
Section 7.03 Right to Cure 167
Article VIII The Agents 168
Section 8.01 Appointment 168
Section 8.02 Delegation of Duties 168
Section 8.03 Exculpatory Provisions 169
Section 8.04 Reliance by Agents 170
Section 8.05 Notice of Default 170
Section 8.06 Non-Reliance on Agents and Other Lenders 170
Section 8.07 Indemnification 171
Section 8.08 Agent in Its Individual Capacity 171
Section 8.09 Successor Administrative Agent 171
Section 8.10 Arrangers, Syndication Agents and Documentation Agents 172
Section 8.11 Security Documents and Collateral Agent 173
Section 8.12 Right to Realize on Collateral and Enforce Guarantees 173
Section 8.13 Withholding Tax 174
Section 8.14 Certain ERISA Matters. 174
Article IX Miscellaneous 175
Section 9.01 Notices; Communications 175
Section 9.02 Survival of Agreement 176
Section 9.03 Binding Effect 177
Section 9.04 Successors and Assigns 177
Section 9.05 Expenses; Indemnity 182
Section 9.06 Right of Set-off 184
Section 9.07 Applicable Law 184
Section 9.08 Waivers; Amendment 184
Section 9.09 Interest Rate Limitation 188
Section 9.10 Entire Agreement 188
Section 9.11 WAIVER OF JURY TRIAL 188
Section 9.12 Severability 188
Section 9.13 Counterparts 188
Section 9.14 Headings 189
Section 9.15 Jurisdiction; Consent to Service of Process 189
Section 9.16 Confidentiality 189
Section 9.17 Platform; Borrower Materials 190
Section 9.18 Release of Liens and Guarantees 190
Section 9.19 Judgment Currency 192
Section 9.20 USA PATRIOT Act Notice 192
Section 9.21 Affiliate Lenders 192
Section 9.22 Agency of the Borrower for the Loan Parties 193
Section 9.23 No Liability of the Issuing Banks 194
Section 9.24 Acknowledgment and Consent to Bail-In of Affected Financial Institutions 194
xi
Section 9.25 Acknowledgment Regarding Any Supported QFCs 194
Section 9.26 Sixteenth Amended and Restated Credit Agreement; Effectiveness of Amendment and Restatement 195
xii
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Administrative Questionnaire
Exhibit C-1 Form of Borrowing Request
Exhibit C-2 Form of Swingline Borrowing Request
Exhibit C-3 Form of Letter of Credit Request
Exhibit D Form of Interest Election Request
Exhibit E Form of Mortgage
Exhibit F Form of Permitted Loan Purchase Assignment and Acceptance
Exhibit G Form of First Lien/First Lien Intercreditor Agreement
Exhibit H Form of Non-Bank Tax Certificate
Exhibit I Form of Intercompany Subordination Terms
Schedule 1.01(A) Certain Excluded Equity Interests
Schedule 1.01(B) Immaterial Subsidiaries
Schedule 1.01(C) Existing Roll-Over Letters of Credit
Schedule 1.01(D) Closing Date Unrestricted Subsidiaries
Schedule 1.01(E) Closing Date Mortgaged Properties
Schedule 1.01(F) Existing CS Letters of Credit
Schedule 2.01 Commitments
Schedule 3.01 Organization and Good Standing
Schedule 3.04 Governmental Approvals
Schedule 3.05 Financial Statements
Schedule 3.07(c) Notices of Condemnation
Schedule 3.08(a) Subsidiaries
Schedule 3.08(b) Subscriptions
Schedule 3.13 Taxes
Schedule 3.16 Environmental Matters
Schedule 3.21 Insurance
Schedule 3.23 Intellectual Property
Schedule 5.12 Post-Closing Items
Schedule 6.01 Indebtedness
Schedule 6.02(a) Liens
Schedule 6.04 Investments
Schedule 6.07 Transactions with Affiliates
Schedule 9.01 Notice Information
xiii
SIXTEENTH AMENDED AND RESTATEDFIRST LIEN CREDIT AGREEMENT, dated as of May 24,
2024 (this "
Agreement
"), among PRIME SECURITY SERVICES HOLDINGS, LLC,a Delaware limited liability
company ("
Holdings
"), PRIME SECURITY SERVICES BORROWER, LLC, a Delaware limited liabilitycompany
(the "
Borrower
"), THE ADT SECURITY CORPORATION, a Delaware corporation ("
ADTSC
"), the LENDERSparty hereto from time to time and BARCLAYS BANK PLC, as
Administrative Agent (in such capacity, the "
Administrative Agent
")for the Lenders.
WHEREAS, Holdings, the Borrowerand ADTSC are party to that certain Fifteenth
Amended and Restated First Lien Credit Agreement (the "
Fifteenth Amended and RestatedCredit Agreement
"), dated as of May 15, 2024 (the "
Fifteenth Incremental Assumption and Amendment Agreement EffectiveDate
"), among Holdings, the Borrower, ADTSC, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Fifteenth Amendedand Restated Credit Agreement amended and
restated that certain Fourteenth Amended and Restated First Lien Credit
Agreement (the "
FourteenthAmended and Restated Credit Agreement
"), dated as of April 15, 2024 (the "
Fourteenth Incremental Assumption and AmendmentAgreement Effective Date
"), among Holdings, the Borrower, ADTSC, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Fourteenth Amendedand Restated Credit Agreement amended and
restated that certain Thirteenth Amended and Restated First Lien Credit
Agreement (the "
ThirteenthAmended and Restated Credit Agreement
"), dated as of October 13, 2023 (the "
Thirteenth Incremental Assumption and AmendmentAgreement Effective Date
"), among Holdings, the Borrower, ADTSC, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Thirteenth Amendedand Restated Credit Agreement amended and
restated that certain Twelfth Amended and Restated First Lien Credit Agreement
(the "
TwelfthAmended and Restated Credit Agreement
"), dated as of May 10, 2023 and effective as of July 1, 2023 (such effective
date, the"
Twelfth Amendment Agreement Effective Date
"), among Holdings, the Borrower, ADTSC, the Lenders party thereto and
theAdministrative Agent;
WHEREAS, the Twelfth Amendedand Restated Credit Agreement amended and restated
that certain Eleventh Amended and Restated First Lien Credit Agreement (the "
EleventhAmended and Restated Credit Agreement
"), dated as of July 2, 2021 (the "
Eleventh Incremental Assumption and AmendmentAgreement Effective Date
"), among Holdings, the Borrower, ADTSC, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Eleventh Amendedand Restated Credit Agreement amended and
restated that certain Tenth Amended and Restated First Lien Credit Agreement
(the "
TenthAmended and Restated Credit Agreement
"), dated as of January 27, 2021 (the "
Tenth Incremental Assumption and AmendmentAgreement Effective Date
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Tenth Amendedand Restated Credit Agreement amended and restated
that certain Ninth Amended and Restated First Lien Credit Agreement (the "
NinthAmended and Restated Credit Agreement
"), dated as of September 23, 2019 (the "
Ninth Incremental Assumption and AmendmentAgreement Effective Date
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Ninth Amendedand Restated Credit Agreement amended and restated
that certain Eighth Amended and Restated First Lien Credit Agreement (the "
EighthAmended and Restated Credit Agreement
"), dated as of March 15, 2019 and effective as of April 4, 2019 (such
effective date,the
1
"
Eighth Amendment Agreement EffectiveDate
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Eighth Amendedand Restated Credit Agreement amended and restated
that certain Seventh Amended and Restated First Lien Credit Agreement (the "
SeventhAmended and Restated Credit Agreement
"), dated as of December 3, 2018 (the "
Seventh Incremental Assumption and AmendmentAgreement Effective Date
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Seventh Amendedand Restated Credit Agreement amended and restated
that certain Sixth Amended and Restated First Lien Credit Agreement (the "
SixthAmended and Restated Credit Agreement
"), dated as of March 16, 2018 (the "
Sixth Incremental Assumption and AmendmentAgreement Effective Date
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Sixth Amendedand Restated Credit Agreement amended and restated
that certain Fifth Amended and Restated Credit Agreement (the "
Fifth Amendedand Restated Credit Agreement
"), dated as of June 29, 2017 (the "
Fifth Amendment Agreement Effective Date
"),among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Fifth Amendedand Restated Credit Agreement amended and restated
that certain Fourth Amended and Restated Credit Agreement (the "
Fourth Amendedand Restated Credit Agreement
"), dated as of February 13, 2017 (the "
Fourth Incremental Assumption and Amendment AgreementEffective Date
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Fourth Amendedand Restated Credit Agreement amended and restated
that certain Third Amended and Restated Credit Agreement (the "
Third Amendedand Restated Credit Agreement
"), dated as of December 28, 2016 (the "
Third Amendment Agreement Effective Date
"),among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Third Amendedand Restated Credit Agreement amended and restated
that certain Second Amended and Restated Credit Agreement (the "
Second Amendedand Restated Credit Agreement
"), dated as of June 23, 2016 (the "
Second Incremental Assumption and Amendment AgreementEffective Date
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Second Amendedand Restated Credit Agreement amended and restated
that certain First Amended and Restated Credit Agreement (the "
First Amendedand Restated Credit Agreement
"), dated as of May 2, 2016 (the "
Closing Date
"), among Holdings, the Borrower,the Lenders party thereto and the
Administrative Agent;
WHEREAS, the First Amendedand Restated Credit Agreement amended and restated
that certain First Lien Credit Agreement (as amended, supplemented or modified
fromtime to time prior to the Closing Date, the "
Original Credit Agreement
"), dated as of July 1, 2015 (the "
OriginalClosing Date
"), among Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent;
WHEREAS, the Borrower hasentered into that certain Incremental Assumption and
Amendment Agreement No. 16 (the "
Sixteenth Incremental Assumption and AmendmentAgreement
"), dated as of the date hereof (the "
Sixteenth Incremental Assumption and Amendment Agreement Effective Date
"),by and among Holdings, the Borrower, ADTSC, the Subsidiary Loan Parties
party thereto, the Lenders party thereto (such Lenders, the "
May2024 Incremental Term B-1 Lenders
") and the Administrative Agent under which the May 2024 Incremental Term B-1
Lenders haveagreed to extend
2
credit to the Borrower and ADTSC in the formof Incremental Term Loans in an
aggregate principal amount of $474,299,679.45 (such Incremental Term Loans,
the "
May 2024 IncrementalTerm B-1 Loans
"); and
WHEREAS, the AdministrativeAgent, Holdings, the Borrower, ADTSC and the May
2024 Incremental Term B-1 Lenders have agreed to amend and restate the
Fifteenth Amendedand Restated Credit Agreement as provided in this Agreement.
NOW, THEREFORE, the FifteenthAmended and Restated Credit Agreement shall be,
and hereby is, amended and restated in its entirety as follows:
Article I
Definitions
Section 1.01
Defined Terms
. As used in this Agreement, the following terms shall have the meanings
specified below:
"
2015 Fee Letter
"shall mean the "Fee Letter" (as defined in the Original Credit Agreement).
"
2015 Transactions
"shall mean the "Transactions" (as defined in the Original Credit Agreement).
"
2016 Equity Contribution
"shall mean the 2016 Equity Contribution (as defined in the First Incremental
Assumption and Amendment Agreement).
"
2016 Fee Letter
"shall mean that certain Fee Letter dated as of February 14, 2016 by and among
the Borrower, the Administrative Agent, Citigroup GlobalMarkets Inc., Deutsche
Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank
Securities Inc., Royal Bank of Canada,PSP Investments Credit USA LLC and PCDH
5, LLC.
"
2019 March Transactions
"shall mean, collectively (a) the execution, delivery and performance of the
Eighth Amendment Agreement; (b) the refinancing of theSecond Priority Senior
Secured Notes including, if applicable, the termination of all obligations in
respect thereof and the release ofLiens in connection therewith; (c) the
execution, delivery and performance of the definitive documentation relating
to Other First LienDebt or other permitted Indebtedness incurred, in whole or
in part, to refinance the Second Priority Senior Secured Notes and, if
applicable,the sale or issuance of debt securities and the creation of Liens
in connection therewith; and (d) the payment of all fees and expensesto be
paid and owing in connection with the foregoing.
"
2019 SeptemberTransactions
" shall mean, collectively (a) the execution, delivery and performance of the
Ninth Incremental Assumption and AmendmentAgreement; (b) the refinancing of
the 2020 Notes including the termination, satisfaction and discharge of all
obligations in respect thereofand the release of Liens in connection
therewith; (c) the refinancing of the Existing Term B-1 Loans (as defined in
the Ninth IncrementalAssumption and Amendment Agreement); (d) the issuance and
sale of the 2026 First Lien Add-on Notes, the execution, delivery and
performanceof the definitive documentation relating thereto and the creation
of Liens in connection therewith; (e) the consummation of the ExistingTerm B-1
Loan Prepayment (as defined in the Ninth Incremental Assumption and Amendment
Agreement); and (f) the payment of all fees andexpenses to be paid and owing
in connection with the foregoing.
3
"
2020 Notes
"shall have the meaning assigned to such term in the definition of "Existing
ADT Roll-Over Notes".
"
2021 Extended RevolvingFacility Commitments
" shall have the meaning assigned to such term in the Eleventh Incremental
Assumption and Amendment Agreement.
"
2021 Notes
"shall have the meaning assigned to such term in the definition of "Existing
ADT Roll-Over Notes".
"
2021 RevolvingFacility Commitment
" shall mean, with respect to each Revolving Facility Lender, the commitment
of such Revolving Facility Lenderto make 2021 Revolving Loans pursuant to
Section 2.01(d), expressed as an amount representing the maximum aggregate
permitted amount ofsuch Revolving Facility Lender's Revolving Facility Credit
Exposure hereunder, as such commitment may be (a) reduced from time totime
pursuant to Section 2.08, (b) reduced or increased from time to time pursuant
to assignments by or to such Lender under Section 9.04,(c) increased (or
replaced) as provided under Section 2.21 or (d) amended from time to time in
accordance with this Agreement. The aggregateamount of the Lenders' 2021
Revolving Facility Commitments as of (and immediately after giving effect to)
the Eleventh IncrementalAssumption and Amendment Agreement Effective Date was
equal to $575,000,000.
"
2021 RevolvingFacility Early 2022 Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of
"2021Revolving Facility Maturity Date".
"
2021 RevolvingFacility Early 2023 Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of
"2021Revolving Facility Maturity Date".
"
2021 RevolvingFacility Early 2024 First Lien Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of
"2021Revolving Facility Maturity Date".
"
2021 RevolvingFacility Early 2026 First Lien Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of
"2021Revolving Facility Maturity Date".
"
2021 RevolvingFacility Early Specified Refinancing Indebtedness Maturity Test
Date
" shall have the meaning assigned to such term in the definitionof "2021
Revolving Facility Maturity Date".
"
2021 RevolvingFacility Maturity Date
" shall mean June 23, 2026;
provided
, that (i) if, on the date that is 91 days prior to the scheduledmaturity date
of the 2022 Notes (the "
2021 Revolving Facility Early 2022 Notes Maturity Test Date
"), the aggregateprincipal amount of the 2022 Notes outstanding (and not held
by the Borrower or any Subsidiary) exceeds $100,000,000, the 2021
RevolvingFacility Maturity Date shall be the 2021 Revolving Facility Early
2022 Notes Maturity Test Date, (ii) if, on the date that is 91 daysprior to
the scheduled maturity date of the 2023 Notes (the "
2021 Revolving Facility Early 2023 Notes Maturity Test Date
"),the aggregate principal amount of the 2023 Notes outstanding (and not held
by the Borrower or any Subsidiary) exceeds $100,000,000, the2021 Revolving
Facility Maturity Date shall be the 2021 Revolving Facility Early 2023 Notes
Maturity Test Date, (iii) if, on the datethat is 91 days prior to the
scheduled maturity date of the 2024 First Lien Notes (the "
2021 Revolving Facility Early 2024 FirstLien Notes Maturity Test Date
"), the aggregate principal amount of the 2024 First Lien Notes outstanding
(and not held by theBorrower or any Subsidiary) exceeds $100,000,000, the 2021
Revolving Facility Maturity Date shall be the 2021 Revolving Facility
Early2024 First Lien Notes Maturity Test Date, (iv) if, on the date that is 91
days prior to the scheduled maturity date of the 2026 FirstLien Notes (the "
2021 Revolving Facility Early 2026 First Lien Notes Maturity Test Date
"), the aggregate principalamount of the 2026 First Lien Notes outstanding
(and not held by the Borrower or any Subsidiary)
4
exceeds $100,000,000, the 2021 Revolving FacilityMaturity Date shall be the
2021 Revolving Facility Early 2026 First Lien Notes Maturity Test Date and (v)
if, on the date that is 91 daysprior to the scheduled maturity date of any
Specified Refinancing Indebtedness (with respect to each and any such
Specified RefinancingIndebtedness, the "
2021 Revolving Facility Early Specified Refinancing Indebtedness Maturity Test
Date
"), the aggregateprincipal amount of such Specified Refinancing Indebtedness
outstanding (and not held by the Borrower or any Subsidiary) exceeds
$100,000,000,the 2021 Revolving Facility Maturity Date shall be the 2021
Revolving Facility Early Specified Refinancing Indebtedness Maturity TestDate.
"
2021 RevolvingLoan
" shall mean a Revolving Facility Loan made (i) pursuant to the 2021 Revolving
Facility Commitments in effect as of theEleventh Incremental Assumption and
Amendment Agreement Effective Date (as the same may be amended from time to
time in accordance withthis Agreement) or (ii) pursuant to any Incremental
Revolving Facility Commitment on the same terms as the Revolving Facility
Loans referredto in clause (i) of this definition.
"
2022 Notes
"shall have the meaning assigned to such term in the definition of "Existing
ADT Roll-Over Notes".
"
2023 Amended andRestated Engagement Letter
" shall mean that certain Amended and Restated Engagement Letter, dated as of
October 7, 2023, byand among the Borrower, Barclays Bank PLC, Deutsche Bank
Securities Inc., Apollo Global Securities, LLC, Mizuho Bank, Ltd., Royal
Bankof Canada, RBC Capital Markets, LLC, Citigroup Global Markets Inc., Morgan
Stanley Senior Funding, Inc., MUFG Bank, Ltd., BNP ParibasSecurities Corp.,
Citizens Bank, N.A., Fifth Third Bank, National Association, ING Capital LLC
and UBS Securities LLC.
"
2023 Notes
"shall have the meaning assigned to such term in the definition of "Existing
ADT Roll-Over Notes".
"
2024 EngagementLetter
" shall mean that certain Engagement Letter, dated as of March 26, 2024, by
and among the Borrower, Barclays Bank PLC,Deutsche Bank Securities Inc.,
Apollo Global Securities, LLC, Mizuho Bank, Ltd., Royal Bank of Canada, RBC
Capital Markets, LLC, CitigroupGlobal Markets Inc., Morgan Stanley Senior
Funding, Inc., MUFG Bank, Ltd., BNP Paribas Securities Corp., Citizens Bank,
N.A., Fifth ThirdBank, National Association and ING Capital LLC, as it may be
amended, restated, amended and restated, supplemented or otherwise
modifiedfrom time to time.
"
2024 RefinancingTerm B-1 Lenders
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
2024 RefinancingTerm B-1 Loan Commitment
" shall have the meaning assigned to such term in the Fourteenth Incremental
Assumption and AmendmentAgreement.
"
2024 RefinancingTerm B-1 Loans
" shall have the meaning assigned to such term in the Fourteenth Incremental
Assumption and Amendment Agreement.
"
2024 First LienNotes
" shall mean the $750,000,000 in aggregate principal amount of 5.250%
First-Priority Senior Secured Notes due 2024 issuedpursuant to that certain
Indenture, dated as of April 4, 2019, among the Borrower, as co-issuer, Prime
Finance Inc., as co-issuer, theguarantors party thereto from time to time and
Wells Fargo Bank, National Association, as trustee.
"
2026 First LienAdd-on Notes
" shall have the meaning assigned to such term in the definition of "2026
First Lien Notes."
5
"
2026 First LienNotes
" shall mean, collectively, (i) the $750,000,000 in aggregate principal amount
of 5.750% First-Priority Senior SecuredNotes due 2026 issued on April 4, 2019
and (ii) the $600,000,000 in aggregate principal amount of 5.750%
First-Priority Senior SecuredNotes due 2026 issued on the Ninth Incremental
Assumption and Amendment Agreement Effective Date (the "
2026 First Lien Add-onNotes
"), in each case, issued pursuant to that certain Indenture, dated as of April
4, 2019, among the Borrower, as co-issuer,Prime Finance Inc., as co-issuer,
the guarantors party thereto from time to time and Wells Fargo Bank, National
Association, as trustee.
"
2027 First LienNotes
" shall mean the $1,000,000,000 in aggregate principal amount of 3.375%
First-Priority Senior Secured Notes due 2027 issuedpursuant to that certain
Indenture, dated as of August 20, 2020, among the Borrower, as co-issuer,
Prime Finance Inc., as co-issuer, theguarantors party thereto from time to
time and Wells Fargo Bank, National Association, as trustee.
"
2028 Second LienNotes
" shall mean the $1,300,000,000 in aggregate principal amount of the 6.250%
Second Priority Senior Secured Notes due 2028issued pursuant to that certain
Indenture, dated as of January 28, 2020, among the Borrower, as co-issuer,
Prime Finance Inc., as co-issuer,the subsidiary guarantors party thereto from
time to time and Wells Fargo Bank, National Association, as trustee.
"
2029 First LienNotes
" shall mean the $1,000,000,000 in aggregate principal amount of 4.125%
First-Priority Senior Secured Notes due 2029 issuedpursuant to that certain
Indenture, dated as of July 29, 2021, among ADTSC, as issuer, the guarantors
party thereto from time to timeand Wells Fargo Bank, National Association, as
trustee.
"
ABR
"shall mean, for any day, a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Effective Rate in effect forsuch day
plus
0.50%, (b) the Prime Rate in effect on such day and (c) Adjusted Term SOFR for
a one-month Interest Periodon such day (or if such day is not a Business Day,
the immediately preceding Business Day)
plus
1.00%. Any change in such ratedue to a change in the Prime Rate, the Federal
Funds Effective Rate or Adjusted Term SOFR shall be effective from and
including the effectivedate of such change in the Prime Rate, the Federal
Funds Effective Rate or Adjusted Term SOFR , as the case may be.
"
ABR Borrowing
"shall mean a Borrowing comprised of ABR Loans.
"
ABR Loan
"shall mean any ABR Term Loan, ABR Revolving Loan or Swingline Loan.
"
ABR Revolving FacilityBorrowing
" shall mean a Borrowing comprised of ABR Revolving Loans.
"
ABR Revolving Loan
"shall mean any Revolving Facility Loan bearing interest at a rate determined
by reference to the ABR in accordance with the provisionsof Article II.
"
ABR Term Loan
"shall mean any Term Loan bearing interest at a rate determined by reference
to the ABR in accordance with the provisions of Article II.
"
ABR Term SOFR DeterminationDay
" shall have the meaning assigned to such term in the definition of "Term SOFR".
"
Additional Mortgage
"shall have the meaning assigned to such term in Section 5.10(c).
6
"
Adjusted Term SOFR
"shall mean, for any Interest Period, (i) with respect to any SOFR Term Loan,
the rate per annum equal to Term SOFR for such Interest Periodand (ii) with
respect to any SOFR Revolving Loan, the rate per annum equal to (a) Term SOFR
for such Interest Period
plus
(b) theTerm SOFR Adjustment;
provided
that, in each case, if Adjusted Term SOFR as so determined shall be less than
the Floor, such rateshall be deemed to be the Floor.
"
Adjustment Date
"shall have the meaning assigned to such term in the definition of "Pricing
Grid."
"
AdministrativeAgent
" shall have the meaning assigned to such term in the introductory paragraph
of this Agreement, together with its successorsand assigns.
"
AdministrativeAgent Fee Letter
" shall mean that certain Administrative Agent Fee Letter (First Lien), dated
as of March 31, 2016, betweenthe Borrower and the Administrative Agent.
"
AdministrativeAgent Fees
" shall have the meaning assigned to such term in Section 2.12(c).
"
AdministrativeQuestionnaire
" shall mean an Administrative Questionnaire in the form of Exhibit B or such
other form supplied by the AdministrativeAgent.
"
ADT Transactions
"shall mean, collectively, the transactions to occur pursuant to the
Transaction Documents, including (a) the consummation of theMerger and the
Tender Offers and the performance of the Merger Agreement; (b) the execution,
delivery and performance of the LoanDocuments and the extensions of credit
under the First Amended and Restated Credit Agreement and the First
Incremental Assumption andAmendment Agreement; (c) the 2016 Equity
Contribution; (d) the Preferred Securities Contribution; (e) the execution,
delivery andperformance of the Second Priority Senior Secured Notes Documents,
the creation of the Liens pursuant to the Second Priority Senior SecuredNotes
Documents and the sale and issuance of the Second Priority Senior Secured
Notes; (f) the repayment in full or discharge of, andthe termination of all
obligations and/or commitments under, the Existing ADT Credit Agreement and
the Existing ADT Short Term Notes;(g) the creation of the Liens pursuant to
the documents governing the Existing ADT Roll-Over Notes; and (h) the payment
of all feesand expenses to be paid and owing in connection with the foregoing.
"
ADTSC
"shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.
"
Affected FinancialInstitution
" shall mean (a) any EEA Financial Institution or (b) any UK Financial
Institution.
"
Affiliate
"shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries,Controls or is
Controlled by or is under common Control with the person specified.
"
Affiliate Lender
"shall have the meaning assigned to such term in Section 9.21(a).
"
Agents
"shall mean the Administrative Agent and the Collateral Agent.
"
Agreed Currency
"shall mean Dollars and each Alternate Currency.
"
Agreement
"shall have the meaning assigned to such term in the introductory paragraph of
this Agreement, as may be amended, restated, supplementedor otherwise modified
from time to time.
7
"
Agreement Currency
"shall have the meaning assigned to such term in Section 9.19.
"
All-in Yield
"shall mean, as to any Loans (or Pari Term Loans, if applicable), the yield
thereon payable to all Lenders (or other lenders, as applicable)providing such
Loans (or Pari Term Loans, if applicable) in the primary syndication thereof,
as reasonably determined by the AdministrativeAgent in consultation with the
Borrower, whether in the form of interest rate, margin, original issue
discount, up-front fees, rate floorsor otherwise;
provided
, that original issue discount and up-front fees shall be equated to interest
rate assuming a 4-year lifeto maturity (or, if less, the life of such Loans
(or Pari Term Loans, if applicable)); and
provided
,
further
, that "All-inYield" shall not include arrangement, commitment, underwriting,
structuring or similar fees and customary consent fees for an amendmentpaid
generally to consenting lenders.
"
Alternate Currency
"shall mean (i) with respect to any Letter of Credit, Canadian Dollars and any
other currency other than Dollars as may be acceptable tothe Administrative
Agent and the Issuing Bank with respect thereto and all respective Lenders of
such Facility with respect thereto intheir sole discretion and (ii) with
respect to any Loan, any currency other than Dollars that is approved in
accordance with Section 1.05.
"
Alternate CurrencyEquivalent
" shall mean, at any time, with respect to any amount denominated in Dollars,
the equivalent amount thereof in theapplicable Alternate Currency as
determined by the Administrative Agent or the applicable Issuing Bank, as the
case may be, at such timeon the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of such Alternate
Currencywith Dollars.
"
Alternate CurrencyLetter of Credit
" shall mean any Letter of Credit denominated in an Alternate Currency.
"
Alternate CurrencyLoan
" shall mean any Loan denominated in an Alternate Currency.
"
Anti-CorruptionLaws
" shall have the meaning assigned to such term in Section 3.26.
"
Apollo Sponsor
"shall have the meaning assigned to such term in the definition of "Sponsors."
"
Applicable CommitmentFee
" shall mean for any day (i) with respect to the 2021 Revolving Facility
Commitment, 0.50% per annum;
provided
,
however
, that on and after the first Adjustment Date occurring after the delivery of
the financial statements and certificatesrequired by Section 5.04 upon the
completion of one fiscal quarter of the Borrower after the Eleventh
Incremental Assumption and AmendmentAgreement Effective Date, the "Applicable
Commitment Fee" will be determined pursuant to the Pricing Grid; or (ii)
withrespect to any Other Revolving Facility Commitments, the "Applicable
Commitment Fee" set forth in the applicable IncrementalAssumption Agreement.
"
Applicable Date
"shall have the meaning assigned to such term in Section 9.08(f).
"
Applicable Margin
"shall mean for any day (i) with respect to any Term B-1 Loan, 2.25% per annum
in the case of any SOFR Loan and 1.25% per annum inthe case of any ABR Loan;
(ii) with respect to any 2021 Revolving Loan, 2.75% per annum in the case of
any SOFR Loan and 1.75% perannum in the case of any ABR Loan;
provided
,
however
, that on and after the first Adjustment Date occurring after the deliveryof
the financial statements and certificates required by Section 5.04 upon the
completion of one fiscal quarter of the Borrower afterthe Eleventh Incremental
Assumption and Amendment Agreement Effective Date, the "Applicable Margin"
with respect to a 2021Revolving Loan will be determined
8
pursuant to the Pricing Grid; and (iii) withrespect to any Other Term Loan or
Other Revolving Loan, the "Applicable Margin" set forth in the Incremental
Assumption Agreementrelating thereto.
"
Applicable Period
"shall mean an Excess Cash Flow Period or an Excess Cash Flow Interim Period,
as the case may be.
"
Approved Fund
"shall have the meaning assigned to such term in Section 9.04(b)(ii).
"
Arrangers
"shall mean, collectively, Barclays Bank PLC, Deutsche Bank Securities Inc.,
Mizuho Bank, Ltd., RBC Capital Markets, LLC, Citigroup GlobalMarkets Inc.,
Morgan Stanley Senior Funding, Inc., MUFG Bank, Ltd., BNP Paribas Securities
Corp. and Citizens Bank, N.A.
"
ASG
"shall mean Alarm Security Holdings LLC, a Delaware limited liability company.
"
Asset Sale
"shall mean any loss, damage, destruction or condemnation of, or any
Disposition (including any sale and leaseback of assets and any mortgageor
lease of Real Property) to any person of, any asset or assets of the Borrower
or any Subsidiary.
"
Assignee
"shall have the meaning assigned to such term in Section 9.04(b)(i).
"
Assignment andAcceptance
" shall mean an assignment and acceptance entered into by a Lender and an
Assignee, and accepted by the AdministrativeAgent and the Borrower (if
required by Section 9.04), in the form of Exhibit A or such other form as
shall be approved by theAdministrative Agent and reasonably satisfactory to
the Borrower.
"
Assignor
"shall have the meaning assigned to such term in Section 9.04(i).
"
Availability Period
"shall mean, with respect to any Class of Revolving Facility Commitments, the
period from and including the Eleventh Incremental Assumptionand Amendment
Agreement Effective Date (or, if later, the effective date for such Class of
Revolving Facility Commitments) to but excludingthe earlier of the Revolving
Facility Maturity Date for such Class and, in the case of each of the
Revolving Facility Loans, RevolvingFacility Borrowings, Swingline Loans,
Swingline Borrowings and Letters of Credit under such Class of Revolving
Facility Commitments, thedate of termination of the Revolving Facility
Commitments of such Class.
"
Available Tenor
"shall mean, as of any date of determination and with respect to the
then-current Benchmark, as applicable, (x) if such Benchmark is aterm rate,
any tenor for such Benchmark (or component thereof) that is or may be used for
determining the length of an interest periodpursuant to this Agreement or (y)
otherwise, any payment period for interest calculated with reference to such
Benchmark (or componentthereof) that is or may be used for determining the
length of an Interest Period, in each case, as of such date and not including,
forthe avoidance of doubt, any tenor for such Benchmark that is then-removed
from the definition of "Interest Period" pursuantto Section 2.14(e).
"
Available UnusedCommitment
" shall mean, with respect to a Revolving Facility Lender under any Class of
Revolving Facility Commitments at anytime, an amount equal to the Dollar
Equivalent of the amount by which (a) the applicable Revolving Facility
Commitment of such RevolvingFacility Lender at such time exceeds (b) the
applicable Revolving Facility Credit Exposure of such Revolving Facility
Lender at suchtime.
"
Bail-In Action
"shall mean the exercise of any Write-Down and Conversion Powers by the
applicable Resolution Authority in respect of any liability ofany Affected
Financial Institution.
9
"
Bail-In Legislation
"shall mean (a) with respect to any EEA Member Country implementing Article 55
of Directive 2014/59/EU of the European Parliament and ofthe Council of the
European Union, the implementing law, regulation, rule or requirement for such
EEA Member Country from time to timewhich is described in the EU Bail-In
Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom BankingAct 2009 (as amended from time to time) and any other
law, regulation or rule applicable in the United Kingdom relating to the
resolutionof unsound or failing banks, investment firms or other financial
institutions or their affiliates (other than through liquidation,
administrationor other insolvency proceedings).
"
Below ThresholdAsset Sale Proceeds
" shall have the meaning assigned to such term in the definition of the term
"Cumulative Credit."
"
Benchmark
"shall mean, initially, the Term SOFR;
provided
that if a Benchmark Transition Event has occurred with respect to the Term
SOFRor the then-current Benchmark, then "Benchmark" shall mean the applicable
Benchmark Replacement to the extent that such BenchmarkReplacement has
replaced such prior benchmark rate pursuant to Section 2.14(b).
"
Benchmark Replacement
"shall mean, with respect to any Benchmark Transition Event, the first
alternative set forth in the order below that can be determinedby the
Administrative Agent for the applicable Benchmark Replacement Date:
(a)
the sum of: (i) Daily Simple SOFR and (ii) with respect to the Revolving
Facility, the related Benchmark Replacement Adjustment;or
(b)
the sum of: (i) the alternate benchmark rate that has been selected by the
Administrative Agent and the Borrower giving due considerationto (A) any
selection or recommendation of a replacement benchmark rate or the mechanism
for determining such a rate by the Relevant GovernmentalBody or (B) any
evolving or then-prevailing market convention for determining a benchmark rate
as a replacement to the then-current Benchmarkfor Dollar-denominated
syndicated credit facilities at such time and (ii) with respect to the
Revolving Facility, the related BenchmarkReplacement Adjustment;
provided
that, ifsuch Benchmark Replacement as determined pursuant to clause (a) or (b)
above would be less than the Floor, such Benchmark Replacementwill be deemed
to be the Floor for the purposes of this Agreement and the other Loan
Documents. With respect to the Revolving Facility,if the Benchmark Replacement
is Daily Simple SOFR plus the related Benchmark Replacement Adjustment, all
interest payments will be payableon a quarterly basis.
"
Benchmark ReplacementAdjustment
" shall mean, with respect to any replacement of the then-current Benchmark
with an Unadjusted Benchmark Replacement,the spread adjustment, or method for
calculating or determining such spread adjustment, (which may be a positive or
negative value orzero) that has been selected by the Administrative Agent and
the Borrower giving due consideration to (a) any selection or recommendationof
a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of such Benchmark with theapplicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any
evolving or then-prevailing market conventionfor determining a spread
adjustment, or method for calculating or determining such spread adjustment,
for the replacement of such Benchmarkwith the applicable Unadjusted Benchmark
Replacement for Dollar-
10
denominated syndicated credit facilities atsuch time. With respect to the
Revolving Facility, if the Benchmark Replacement is Daily Simple SOFR, the
Benchmark Replacement Adjustmentshall be 0.26161% (26.161 basis points).
"
Benchmark ReplacementDate
" shall mean the earliest to occur of the following events with respect to the
then-current Benchmark:
(a) inthe case of clause (a) or (b) of the definition of "Benchmark
Transition Event," the later of (i) the date of the public statementor
publication of information referenced therein and (ii) the date on which the
administrator of such Benchmark (or the published componentused in the
calculation thereof) permanently or indefinitely ceases to provide all
Available Tenors of such Benchmark (or such componentthereof); or
(b) inthe case of clause (c) of the definition of "Benchmark Transition
Event," the first date on which such Benchmark (or the publishedcomponent used
in the calculation thereof) has been determined and announced by or on behalf
of the administrator of such Benchmark (orsuch component thereof) or the
regulatory supervisor for the administrator of such Benchmark (or such
component thereof) to be non-representative;
provided
that such non-representativeness will be determined by reference to the most
recent statement or publication referencedin such clause (c) and even if any
Available Tenor of such Benchmark (or such component thereof) continues to be
provided on such date.
For the avoidance of doubt,the "Benchmark Replacement Date" will be deemed to
have occurred in the case of clause (a) or (b) with respect to any
Benchmarkupon the occurrence of the applicable event or events set forth
therein with respect to all then-current Available Tenors of such Benchmark(or
the published component used in the calculation thereof).
"
Benchmark TransitionEvent
" shall mean the occurrence of one or more of the following events with
respect to the then-current Benchmark:
(a) apublic statement or publication of information by or on behalf of
the administrator of such Benchmark (or the published component usedin the
calculation thereof) announcing that such administrator has ceased or will
cease to provide all Available Tenors of such Benchmark(or such component
thereof), permanently or indefinitely;
provided
that, at the time of such statement or publication, there isno successor
administrator that will continue to provide any Available Tenor of such
Benchmark (or such component thereof);
(b) apublic statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the publishedcomponent
used in the calculation thereof), the Board, the Federal Reserve Bank of New
York, an insolvency official with jurisdictionover the administrator for such
Benchmark (or such component), a resolution authority with jurisdiction over
the administrator for suchBenchmark (or such component) or a court or an
entity with similar insolvency or resolution authority over the administrator
for suchBenchmark (or such component), which states that the administrator of
such Benchmark (or such component) has ceased or will cease to provideall
Available Tenors of such Benchmark (or such component thereof) permanently or
indefinitely;
provided
that, at the time of suchstatement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such
Benchmark (orsuch component thereof); or
11
(c) apublic statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the publishedcomponent
used in the calculation thereof) announcing that all Available Tenors of such
Benchmark (or such component thereof) are not,or as of a specified future date
will not be, representative.
For the avoidance of doubt,a "Benchmark Transition Event" will be deemed to
have occurred with respect to any Benchmark if a public statement or
publicationof information set forth above has occurred with respect to each
then-current Available Tenor of such Benchmark (or the published componentused
in the calculation thereof).
"
Benchmark UnavailabilityPeriod
" shall mean, the period (if any) (a) beginning at the time that a Benchmark
Replacement Date has occurred if, at suchtime, no Benchmark Replacement has
replaced the then-current Benchmark for all purposes hereunder and under any
Loan Document in accordancewith Section 2.14(b) and (b) ending at the time
that a Benchmark Replacement has replaced the then-current Benchmark for all
purposeshereunder and under any Loan Document in accordance with Section
2.14(b).
"
Beneficial OwnershipCertification
" shall mean a certification regarding beneficial ownership of the Borrower as
required by the Beneficial OwnershipRegulation.
"
Beneficial OwnershipRegulation
" shall mean 31 C.F.R. (s) 1010.230.
"
Board
"shall mean the Board of Governors of the Federal Reserve System of the United
States of America.
"
Board of Directors
"shall mean, as to any person, the board of directors or other governing body
of such person, or if such person is owned or managed bya single entity, the
board of directors or other governing body of such entity.
"
Borrower
"shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.
"
Borrower Materials
"shall have the meaning assigned to such term in Section 9.17(a).
"
Borrowing
"shall mean a group of Loans of a single Type under a single Facility, and
made on a single date and, in the case of SOFR Loans, as towhich a single
Interest Period is in effect.
"
Borrowing Minimum
"shall mean (a) in the case of SOFR Loans, $1,000,000, (b) in the case of ABR
Loans, $1,000,000 and (c) in the case of SwinglineLoans, $500,000.
"
Borrowing Multiple
"shall mean (a) in the case of SOFR Loans, $500,000, (b) in the case of ABR
Loans, $250,000 and (c) in the case of SwinglineLoans, $100,000.
"
Borrowing Request
"shall mean a request by the Borrower or any Co-Borrower in accordance with
the terms of Section 2.03 and substantially in the formof Exhibit C-1 or
another form approved by the Administrative Agent.
"
Budget
"shall have the meaning assigned to such term in Section 5.04(e).
"
Business Day
"shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or requiredby law to remain
closed;
provided
,
however
, that with respect to notices and determinations in connection with, and
paymentsof principal and interest
12
on, Loans denominated in Euro, such day isalso a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer System
(TARGET) (or, if such clearing systemceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a
suitable replacement) is openfor settlement of payment in Euro.
"
Capital Expenditures
"shall mean, for any person in respect of any period, the aggregate of all
expenditures incurred by such person during such period that,in accordance
with GAAP, are or should be included in "additions to property, plant or
equipment" or similar items reflectedin the statement of cash flows of such
person (including capitalized customer acquisition costs);
provided
,
however
, that,Capital Expenditures for the Borrower and the Subsidiaries shall not
include:
(a) expendituresto the extent made with proceeds of the issuance of
Qualified Equity Interests (other than Disqualified Stock) of Holdings or
capitalcontributions to Holdings or funds that would have constituted Net
Proceeds under clause (a) of the definition of the term "NetProceeds" (but
that will not constitute Net Proceeds as a result of the first or second
proviso to such clause (a));
provided
that (i) this clause (a) shall exclude expenditures made with the proceeds of
Permitted Cure Securities, proceeds of Equity Interestsreferred to in Section
6.01(l), proceeds from sales of Equity Interests financed as contemplated by
Section 6.04(e)(iii), proceeds ofEquity Interests used to make Investments
pursuant to Section 6.04(q), proceeds of Equity Interests used to make a
Restricted Paymentin reliance on clause (x) of the proviso to Section 6.06(c)
and any proceeds used to finance the payments or distributions in respectof
any Junior Financing pursuant to Section 6.09(b)(i)(C) and (D) and (ii) such
proceeds are not included in any determination of theCumulative Credit;
(b) expendituresof proceeds of insurance settlements, condemnation
awards and other settlements in respect of lost, destroyed, damaged or
condemned assets,equipment or other property to the extent such expenditures
are made to replace or repair such lost, destroyed, damaged or condemned
assets,equipment or other property or otherwise to acquire, maintain, develop,
construct, improve, upgrade or repair assets or properties usefulin the
business of the Borrower and the Subsidiaries to the extent such proceeds are
not then required to be applied to prepay Term Loanspursuant to Section
2.11(b);
(c) interestcapitalized during such period;
(d) expendituresthat are accounted for as capital expenditures of such
person and that actually are paid for by a third party (excluding Holdings,
theBorrower or any Subsidiary) and for which none of Holdings, the Borrower or
any Subsidiary has provided or is required to provide or incur,directly or
indirectly, any consideration or obligation to such third party or any other
person (whether before, during or after suchperiod);
(e) thebook value of any asset owned by such person prior to or during
such period to the extent that such book value is included as a capitalexpenditu
re during such period as a result of such person reusing or beginning to reuse
such asset during such period without a correspondingexpenditure actually
having been made in such period;
provided
that (i) any expenditure necessary in order to permit such assetto be reused
shall be included as a Capital Expenditure during the period that such
expenditure actually is made and (ii) such book valueshall have been included
in Capital Expenditures when such asset was originally acquired;
(f) thepurchase price of equipment purchased during such period to the
extent that the consideration therefor consists of any combination of(i) used
or surplus equipment traded in at the time of such purchase and (ii) the
proceeds of a concurrent sale of used or surplus equipment,in each case, in
the ordinary course of business;
(g) Investmentsin respect of a Permitted Business Acquisition; or
13
(h) thepurchase of property, plant or equipment made with proceeds from
any Asset Sale to the extent such proceeds are not then required to beapplied
to prepay Term Loans pursuant to Section 2.11(b).
"
Capitalized LeaseObligations
" shall mean, at the time any determination thereof is to be made, the amount
of the liability in respect of a capitallease that would at such time be
required to be capitalized and reflected as a liability on a balance sheet
(excluding the footnotes thereto)in accordance with GAAP;
provided
that obligations of the Borrower or its Subsidiaries, or of a special purpose
or other entitynot consolidated with the Borrower and its Subsidiaries, either
existing on the Original Closing Date or created thereafter that (a)
initiallywere not included on the consolidated balance sheet of the Borrower
as capital lease obligations and were subsequently recharacterizedas capital
lease obligations or, in the case of such a special purpose or other entity
becoming consolidated with the Borrower and itsSubsidiaries, were required to
be characterized as capital lease obligations upon such consideration, in
either case, due to a changein accounting treatment or otherwise, or (b) did
not exist on the Original Closing Date and were required to be characterized
ascapital lease obligations but would not have been required to be treated as
capital lease obligations on the Original Closing Date hadthey existed at that
time, shall for all purposes not be treated as Capitalized Lease Obligations
or Indebtedness.
"
Capitalized SoftwareExpenditures
" shall mean, for any period, the aggregate of all expenditures (whether paid
in cash or accrued as liabilities)by a person during such period in respect of
licensed or purchased software or internally developed software and software
enhancementsthat, in accordance with GAAP, are or are required to be reflected
as capitalized costs on the consolidated balance sheet of such personand its
subsidiaries.
"
Cash Collateralize
"shall mean to pledge and deposit with or deliver to the Collateral Agent, for
the benefit of one or more of the Issuing Banks or Lenders,as collateral for
Revolving L/C Exposure or obligations of the Lenders to fund participations in
respect of Revolving L/C Exposure, cashor deposit account balances or, if the
Collateral Agent and each Issuing Bank shall agree in their sole discretion,
other credit support,in each case pursuant to documentation in form and
substance reasonably satisfactory to the Collateral Agent and each applicable
IssuingBank. "Cash Collateral" and "Cash Collateralization" shall have a
meaning correlative to the foregoing and shallinclude the proceeds of such
cash collateral and other credit support.
"
Cash Interest Expense
"shall mean, with respect to the Borrower and the Subsidiaries on a
consolidated basis for any period, Interest Expense for such periodto the
extent such amounts are paid in cash for such period, excluding, without
duplication, in any event (a) pay-in-kind InterestExpense or other non-cash
Interest Expense (including as a result of the effects of purchase
accounting), (b) to the extent includedin Interest Expense, the amortization
of any financing fees paid by, or on behalf of, the Borrower or any
Subsidiary, including such feespaid in connection with the 2015 Transactions,
the ADT Transactions, the 2019 March Transactions or the 2019 September
Transactions orupon entering into a Permitted Securitization Financing, and
(c) the amortization of debt discounts, if any, or fees in respect ofHedging
Agreements;
provided
, that Cash Interest Expense shall exclude any one time financing fees,
including those paid in connectionwith the 2015 Transactions, the ADT
Transactions, the 2019 March Transactions or the 2019 September Transactions,
or upon entering intoa Permitted Securitization Financing or any amendment of
this Agreement.
"
Cash ManagementAgreement
" shall mean any agreement to provide to Holdings, the Borrower or any
Subsidiary cash management services for collections,treasury management
services (including controlled disbursement, overdraft, automated clearing
house fund transfer services, return itemsand interstate depository network
services), any demand deposit, payroll, trust or operating account
relationships, commercial creditcards, merchant card, purchase or debit cards,
non-card e-payables
14
services, and other cash management services,including electronic funds
transfer services, lockbox services, stop payment services and wire transfer
services.
"
Cash ManagementBank
" shall mean any person that, at the time it enters into a Cash Management
Agreement (or on the Closing Date), is an Agent,an Arranger, a Lender or an
Affiliate of any such person, in each case, in its capacity as a party to such
Cash Management Agreement.
"
CFC
"shall mean a "controlled foreign corporation" within the meaning of Section
957(a) of the Code.
A "
Change in Control
"shall be deemed to occur if:
(a) anyperson, entity or "group" (within the meaning of Section 13(d) or
14(d) of the Exchange Act, but excluding any employeebenefit plan of such
person, entity or "group" and its subsidiaries and any person or entity acting
in its capacity as trustee,agent or other fiduciary or administrator of any
such plan), other than the Permitted Holders (or any holding company parent of
the Borrowerowned directly or indirectly by the Permitted Holders), shall at
any time have acquired direct or indirect beneficial ownership (as definedin
Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of voting power of the
outstanding Voting Stock of the Borrower having more thanthe greater of (A)
35% of the ordinary voting power for the election of directors of the Borrower
and (B) the percentage ofthe ordinary voting power for the election of
directors of the Borrower owned in the aggregate, directly or indirectly,
beneficially,by the Permitted Holders, unless the Permitted Holders have, at
such time, the right or the ability by voting power, contract or otherwiseto
elect or designate for election at least a majority of the members of the
Board of Directors of the Borrower; or
(b) a"Change in Control" (as defined in (i) the Second Lien Credit
Agreement, (ii) the Second Priority Senior Secured Notes Indenture,(iii) the
indentures governing the Existing ADT Roll-Over Notes, (iv) any indenture or
credit agreement in respect of Permitted RefinancingIndebtedness with respect
to the Indebtedness referenced in subclause (i) through (iii) of this clause
(b), in each case, constitutingMaterial Indebtedness or (v) any indenture or
credit agreement in respect of any Junior Financing constituting Material
Indebtedness)shall have occurred; or
(c) Holdingsshall fail to own, directly or indirectly, beneficially and
of record, 100% of the issued and outstanding Equity Interests of the
Borrower(other than in connection with or after a Qualified IPO of the
Borrower).
"
Change in Law
"shall mean (a)
the adoption of any law, rule or regulation after the Closing Date, (b) any
change in law, rule or regulationor in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance
by any Lender(or, for purposes of Section 2.15(b), by any Lending Office of
such Lender or by such Lender's holding company, if any) with anywritten
request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after theClosing Date;
provided
,
however
, that notwithstanding anything herein to the contrary, (x) all requests,
rules, guidelinesor directives under or issued in connection with the
Dodd-Frank Wall Street Reform and Consumer Protection Act, all interpretationsan
d applications thereof and any compliance by a Lender with any request or
directive relating thereto and (y) all requests, rules,guidelines or
directives promulgated under or in connection with, all interpretations and
applications of, and any compliance by a Lenderwith any request or directive
relating to International Settlements, the Basel Committee on Banking
Supervision (or any successor or similarauthority) or the United States of
America or foreign regulatory authorities, in each case pursuant to Basel III,
shall in each caseunder clauses (x) and (y) be deemed to be a "Change in Law"
but only to the extent a Lender is imposing applicableincreased costs or costs
in connection with capital adequacy requirements similar to those
15
described in clauses (a) and (b) ofSection 2.15 generally on other borrowers
of loans under United States of America cash flow term loan credit facilities.
"
Charges
"shall have the meaning assigned to such term in Section 9.09.
"
Class
"shall mean, (a) when used in respect of any Loan or Borrowing, whether such
Loan or the Loans comprising such Borrowing are TermB-1 Loans, Other Term
Loans, 2021 Revolving Loans or Other Revolving Loans; and (b) when used in
respect of any Commitment, whethersuch Commitment is in respect of a
commitment to make Term B-1 Loans, Other Term Loans, 2021 Revolving Loans or
Other Revolving Loans;
provided
that, from and after the Sixteenth Incremental Assumption and Amendment
Agreement Effective Date, for the avoidance ofdoubt, the 2024 Refinancing Term
B-1 Loans, the Incremental Term B-1 Loans and the May 2024 Incremental Term
B-1 Loans shall be treatedas Loans of the same "Class" for purposes of this
Agreement and the other Loan Documents. Other Term Loans or Other
RevolvingLoans that have different terms and conditions (together with the
Commitments in respect thereof) from the Term B-1 Loans or the 2021Revolving
Loans, respectively, or from other Other Term Loans or other Other Revolving
Loans, as applicable, shall be construed to bein separate and distinct Classes.
"
Class Loans
"shall have the meaning assigned to such term in Section 9.08(f).
"
Closing Date
"shall have the meaning assigned to such term in the recitals of this Agreement.
"
Closing Date Arrangers
"shall mean, collectively, Barclays Bank PLC, Deutsche Bank Securities Inc.,
Citibank, N.A., Mizuho Bank, Ltd., RBC Capital Markets, LLCand Goldman Sachs
Bank USA.
"
Closing Date MortgagedProperties
" shall have the meaning assigned to such term in the definition of "Mortgaged
Properties."
"
Co-Borrowers
"shall mean, with respect to any Revolving Facility Borrowings or Borrowings
of Term B-1 Loans, (i) ADTSC and (ii) any other Wholly OwnedDomestic
Subsidiary of the Borrower that becomes a Co-Borrower after the Eleventh
Incremental Assumption and Amendment Agreement EffectiveDate (with respect to
the Revolving Facility) or the Thirteenth Incremental Assumption and Amendment
Agreement Effective Date (with respectto the Term B-1 Loans)~
provided
that if the Borrower wishes to add a Co-Borrower after the Eleventh
Incremental Assumptionand Amendment Agreement Effective Date or the Thirteenth
Incremental Assumption and Amendment Agreement Effective Date, as
applicable,then (i) such Co-Borrower shall be a Wholly Owned Domestic
Subsidiary of the Borrower, (ii) if such Co-Borrower is newly acquired or
created,such Co-Borrower shall comply with the requirements of Section 5.10
applicable thereto within the time periods provided therein and (iii)the
Administrative Agent shall have received a joinder to this Agreement and all
documentation and information with respect to such Co-Borrowerrequired by
Section 3.25(a) as the Administrative Agent or any Revolving Facility Lender
or any Lender of Term B-1 Loans, as applicable,shall have reasonably requested.
"
Co-Manager
"shall mean, collectively, Apollo Global Securities, LLC, Fifth Third Bank,
National Association and ING Capital LLC.
"
Code
"shall mean the Internal Revenue Code of 1986, as amended.
"
Collateral
"shall mean all the "Collateral" as defined in any Security Document and shall
also include the Mortgaged Properties and allother property that is subject to
any Lien in favor of the
16
Administrative Agent, the Collateral Agentor any Subagent for the benefit of
the Secured Parties pursuant to any Security Document.
"
Collateral Agent
"shall mean the Administrative Agent acting as collateral agent for the
Secured Parties, together with its successors and permitted assignsin such
capacity.
"
Collateral Agreement
"shall mean the Collateral Agreement (First Lien) dated as of the Original
Closing Date as may be amended, restated, supplemented or otherwisemodified
from time to time, among the Borrower, each Subsidiary Loan Party and the
Collateral Agent.
"
Collateral andGuarantee Requirement
" shall mean the requirement that (in each case subject to Sections 5.10(d),
(e) and (g) and Schedule 5.12):
(a)
on the Closing Date, the Collateral Agent shall have received (i) from each
Subsidiary Loan Party (other than the SubsidiaryLoan Parties listed on
Schedule 3.08(a) to the Original Credit Agreement) (x) a supplement to the
Collateral Agreement, (y) a supplementto the Subsidiary Guarantee Agreement
and (z) an acknowledgment and consent to the First Lien/Second Lien
Intercreditor Agreement and(ii) from the parties thereto, (x) a fully-executed
First Lien/First Lien Intercreditor Agreement and (y) an acknowledgment and
consentto the First Lien/First Lien Intercreditor Agreement, in each case duly
executed and delivered on behalf of such person;
(b)
on the Closing Date, (i)(x) all outstanding Equity Interests of the Borrower
and all other outstanding Equity Interests, in eachcase, directly owned by the
Loan Parties, other than Excluded Securities, and (y) all Indebtedness owing
to any Loan Party, otherthan Excluded Securities, shall have been pledged
pursuant to the Collateral Agreement and (ii) the Collateral Agent shall have
receivedcertificates or other instruments (if any) representing such Equity
Interests (other than certificates or instruments issued by Subsidiariesof the
Target that are not received from the Target, after using commercially
reasonable efforts, on or prior to the Closing Date) andany notes or other
instruments required to be delivered pursuant to the applicable Security
Documents, together with stock powers, notepowers or other instruments of
transfer (if any) with respect thereto endorsed in blank;
provided
that the foregoing requirementin this subsection (b)(ii) shall be deemed
satisfied with respect to any certificates, notes or instruments delivered to
the AdministrativeAgent prior to the Closing Date;
(c)
in the case of any person that becomes a Subsidiary Loan Party after the
Closing Date, the Collateral Agent shall have received(i) a supplement to the
Collateral Agreement and the Subsidiary Guarantee Agreement and (ii)
supplements to the other SecurityDocuments, if applicable, in the form
specified therefor or otherwise reasonably acceptable to the Administrative
Agent, in each case,duly executed and delivered on behalf of such Subsidiary
Loan Party;
(d)
after the Closing Date, (x) all outstanding Equity Interests of any person
that becomes a Subsidiary Loan Party after theClosing Date and (y) subject to
Section 5.10(g), all Equity Interests directly acquired by a Loan Party after
the Closing Date,other than Excluded Securities, shall have been pledged
pursuant to the Collateral Agreement, together with stock powers or other
instrumentsof transfer (if any) with respect thereto endorsed in blank;
(e)
except as otherwise contemplated by this Agreement or any Security Document,
all documents and instruments, including Uniform CommercialCode financing
statements, and filings with the United States Copyright Office and the United
States Patent and Trademark Office, andall other actions reasonably requested
by the Collateral Agent (including those required by applicable Requirements
of Law) to be delivered,filed, registered or recorded to create the Liens
intended to be created by the Security Documents (in each case, including any
supplementsthereto)
17
and perfect such Liens to the extentrequired by, and with the priority
required by, the Security Documents, shall have been delivered, filed,
registered or recorded or deliveredto the Collateral Agent for filing,
registration or the recording concurrently with, or promptly following, the
execution and deliveryof each such Security Document;
(f)
within (x) 120 days after the Closing Date with respect to each Closing Date
Mortgaged Property set forth on Schedule 1.01(E)(or on such later date as the
Collateral Agent may agree in its reasonable discretion) and (y) within the
time periods set forthin Section 5.10 with respect to Mortgaged Properties
encumbered pursuant to said Section 5.10, the Collateral Agent shall
havereceived (i) counterparts of each Mortgage to be entered into with respect
to each such Mortgaged Property duly executed and deliveredby the record owner
of such Mortgaged Property and suitable for recording or filing in all filing
or recording offices that the CollateralAgent may reasonably deem necessary or
desirable in order to create a valid and enforceable Lien subject to no other
Liens except PermittedLiens, at the time of recordation thereof, (ii) with
respect to the Mortgage encumbering each such Mortgaged Property, opinions
ofcounsel regarding the enforceability, due authorization, execution and
delivery of the Mortgages and such other matters customarily coveredin real
estate counsel opinions as the Collateral Agent may reasonably request, in
form and substance reasonably acceptable to the CollateralAgent, (iii) with
respect to each such Mortgaged Property, the Flood Documentation and (iv) such
other documents as the CollateralAgent may reasonably request that are
available to the Borrower without material expense with respect to any such
Mortgage or MortgagedProperty;
(g)
within (x) 120 days after the Closing Date with respect to each Closing Date
Mortgaged Property set forth on Schedule 1.01(E)(or on such later date as the
Collateral Agent may agree in its reasonable discretion) and (y) within the
time periods set forthin Section 5.10 with respect to Mortgaged Properties
encumbered pursuant to said Section 5.10, the Collateral Agent shall
havereceived (i) a policy or policies or marked up unconditional binder of
title insurance with respect to properties located in the UnitedStates of
America, or a date-down and modification endorsement, if available, paid for
by the Borrower, issued by a nationally recognizedtitle insurance company
insuring the Lien of each Mortgage as a valid Lien on the Mortgaged Property
described therein, free of any otherLiens except Permitted Liens, together
with such customary endorsements, coinsurance and reinsurance as the
Collateral Agent may reasonablyrequest and which are available at commercially
reasonable rates in the jurisdiction where the applicable Mortgaged Property
is locatedand (ii) a survey of each Mortgaged Property (including all
improvements, easements and other customary matters thereon reasonably
requiredby the Collateral Agent), as applicable, for which all necessary fees
(where applicable) have been paid with respect to properties locatedin the
United States of America, which is (A) complying in all material respects with
the minimum detail requirements of the AmericanLand Title Association and
American Congress of Surveying and Mapping as such requirements are in effect
on the date of preparation ofsuch survey and (B) sufficient for such title
insurance company to remove all standard survey exceptions from the title
insurance policyrelating to such Mortgaged Property or otherwise reasonably
acceptable to the Collateral Agent;
(h)
evidence of the insurance required by the terms of Section 5.02 hereof; and
(i)
after the Closing Date, the Collateral Agent shall have received (i) such
other Security Documents as may be required to bedelivered pursuant to Section
5.10 or the Collateral Agreement, and (ii) upon reasonable request by the
Collateral Agent, evidenceof compliance with any other requirements of Section
5.10.
"
Commitment Fee
"shall have the meaning assigned to such term in Section 2.12(a).
18
"
Commitments
"shall mean (a) with respect to any Lender, such Lender's Revolving Facility
Commitment and Term Facility Commitment and (b) withrespect to any Swingline
Lender, its Swingline Commitment (it being understood that a Swingline
Commitment does not increase the applicableSwingline Lender's 2021 Revolving
Facility Commitment).
"
Commodity ExchangeAct
" shall mean the Commodity Exchange Act (7 U.S.C. (s) 1 et seq.), as amended
from time to time, and any successorstatute.
"
Conduit Lender
"shall mean any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise requiredto be made by such
Lender and designated by such Lender in a written instrument;
provided
, that the designation by any Lender ofa Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this
Agreement if, for any reason,its Conduit Lender fails to fund any such Loan,
and the designating Lender (and not the Conduit Lender) shall have the sole
right andresponsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender;
provided
,
further
, that no Conduit Lender shall (a) be entitled to receive any greater amount
pursuant to Sections 2.15, 2.16,2.17 or 9.05 than the designating Lender would
have been entitled to receive in respect of the extensions of credit made by
such ConduitLender unless the designation of such Conduit Lender is made with
the prior written consent of the Borrower (not to be unreasonably withheldor
delayed), which consent shall specify that it is being made pursuant to the
proviso in the definition of "Conduit Lender"and provided that the designating
Lender provides such information as the Borrower reasonably requests in order
for the Borrower to determinewhether to provide its consent or (b) be deemed
to have any Commitment.
"
Conforming Changes
"shall mean, with respect to either the use or administration of Term SOFR or
the use, administration, adoption or implementation of anyBenchmark
Replacement, any technical, administrative or operational changes (including
changes to the definition of "ABR,"the definition of "Business Day," the
definition of "U.S. Government Securities Business Day," the definitionof
"Interest Period" or any similar or analogous definition (or the addition of a
concept of "interest period"),timing and frequency of determining rates and
making payments of interest, timing of borrowing requests or prepayment,
conversion or continuationnotices, the applicability and length of lookback
periods and other technical, administrative or operational matters) that the
AdministrativeAgent decides in its reasonable discretion may be appropriate to
reflect the adoption and implementation of any such rate or to permitthe use
and administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the AdministrativeAgent
decides in its reasonable discretion that adoption of any portion of such
market practice is not administratively feasible or ifthe Administrative Agent
determines in its reasonable discretion (and in consultation with the
Borrower) that no market practice for theadministration of any such rate
exists, in such other manner of administration as the Administrative Agent
decides is reasonably necessaryin connection with the administration of this
Agreement and the other Loan Documents without giving effect to any conforming
changes thatare adverse to the interests of the Borrower unless such changes
are approved by the Borrower (which approval shall not be unreasonablywithheld,
conditioned or delayed)).
"
Consolidated Debt
"at any date shall mean the sum of (without duplication) all Indebtedness
(other than letters of credit or bank guarantees, to the extentundrawn)
consisting of Indebtedness for borrowed money and Disqualified Stock of the
Borrower and the Subsidiaries determined on a consolidatedbasis on such date
in accordance with GAAP.
"
Consolidated NetIncome
" shall mean, with respect to any person for any period, the aggregate of the
Net Income of such person and its subsidiariesfor such period, on a
consolidated basis;
provided
,
however
, that, without duplication,
19
(i) anynet after-tax extraordinary, nonrecurring or unusual gains or
losses or income or expense or charge (less all fees and expenses
relatingthereto), any severance, relocation or other restructuring expenses,
any expenses related to any New Project or any reconstruction, decommissioning,r
ecommissioning or reconfiguration of fixed assets for alternative uses, fees,
expenses or charges relating to facility or branch closingcosts, rebranding
costs, curtailments or modifications to pension and post-retirement employee
benefit plans, excess pension charges,acquisition integration costs, facility
or branch opening costs, signing, retention or completion bonuses, and
expenses or charges relatedto any offering or repurchase of Equity Interests
or debt securities of the Borrower, Holdings or any Parent Entity, any
Investment, acquisition,Disposition, recapitalization or issuance, repayment,
refinancing, amendment or modification of Indebtedness (in each case, whether
ornot successful), and any fees, expenses, charges or change in control
payments related to the 2015 Transactions or the ADT Transactions(including
any costs relating to auditing prior periods, any transition-related expenses,
and Transaction Expenses incurred before, onor after the Closing Date), in
each case, shall be excluded,
(ii) anynet after-tax income or loss from Disposed of, abandoned, closed
or discontinued operations or fixed assets and any net after-tax gainor loss
on Disposed of, abandoned, closed or discontinued operations or fixed assets
shall be excluded,
(iii) anynet after-tax gain or loss (less all fees and expenses or
charges relating thereto) attributable to business Dispositions or asset
Dispositionsother than in the ordinary course of business (as determined in
good faith by the management of the Borrower) shall be excluded,
(iv) anynet after-tax income or loss (less all fees and expenses or
charges relating thereto) attributable to the early extinguishment of
indebtedness,Hedging Agreements or other derivative instruments shall be
excluded,
(v) (A) theNet Income for such period of any person that is not a
subsidiary of such person, or is an Unrestricted Subsidiary, or that is
accountedfor by the equity method of accounting, shall be included only to the
extent of the amount of dividends or distributions or other paymentspaid in
cash (or to the extent converted into cash) to the referent person or a
subsidiary thereof (other than an Unrestricted Subsidiaryof such referent
person) in respect of such period and (B) the Net Income for such period shall
include any dividend, distributionor other payment in cash (or to the extent
converted into cash) received by the referent person or a subsidiary thereof
(other than anUnrestricted Subsidiary of such referent person) from any person
in excess of, but without duplication of, the amounts included in subclause
(A),
(vi) thecumulative effect of a change in accounting principles during
such period shall be excluded,
(vii) effectsof purchase accounting adjustments (including the effects
of such adjustments pushed down to such person and its subsidiaries) in
componentamounts required or permitted by GAAP, resulting from the application
of purchase accounting or the amortization or write-off of any amountsthereof,
net of taxes, shall be excluded,
(viii) anyimpairment charges or asset write-offs, in each case pursuant
to GAAP, and the amortization of intangibles and other fair value
adjustmentsarising pursuant to GAAP, shall be excluded,
(ix) anynon-cash compensation charge or expenses realized or resulting
from stock option plans, employee benefit plans or post-employment
benefitplans, or grants or sales of stock,
20
stock appreciation or similar rights,stock options, restricted stock,
preferred stock or other rights shall be excluded,
(x) accrualsand reserves that are established or adjusted within twelve
months after the Closing Date and that are so required to be established
oradjusted in accordance with GAAP or as a result of adoption or modification
of accounting policies shall be excluded,
(xi) non-cashgains, losses, income and expenses resulting from fair
value accounting required by the applicable standard under GAAP and related
interpretationshall be excluded,
(xii) anygain, loss, income, expense or charge resulting from the
application of any LIFO method shall be excluded,
(xiii) anynon-cash charges for deferred tax asset valuation allowances
shall be excluded,
(xiv) anycurrency translation gains and losses related to currency
remeasurements of Indebtedness, and any net loss or gain resulting from
HedgingAgreements for currency exchange risk, shall be excluded,
(xv) anydeductions attributable to minority interests shall be excluded,
(xvi) (A)the non-cash portion of "straight-line" rent expense shall be
excluded, (B) the cash portion of "straight-line"rent expense which exceeds
the amount expensed in respect of such rent expense shall be included, (C) the
non-cash amortization of tenantallowances shall be excluded, (D) cash received
from landlords for tenant allowances shall be included and (E) to the extent
not alreadyincluded in Net Income, the cash portion of sublease rentals
received shall be included (for the avoidance of doubt, the net effect ofthe
adjustments in this clause (xvi) as well as any related adjustments pursuant
to clause (vii) above shall be to compute rent expenseand rental income on a
cash basis for purposes of determining Consolidated Net Income),
(xvii) (A)to the extent covered by insurance and actually reimbursed,
or, so long as such person has made a determination that there exists
reasonableevidence that such amount will in fact be reimbursed by the insurer
and only to the extent that such amount is (x) not denied bythe applicable
carrier in writing within 180 days and (y) in fact reimbursed within 365 days
following the date of such evidence(with a deduction for any amount so added
back to the extent not so reimbursed within such 365 days), expenses with
respect to liabilityor casualty events or business interruption shall be
excluded; and (B) amounts estimated in good faith to be received from
insurancein respect of lost revenues or earnings in respect of liability or
casualty events or business interruption shall be included (with adeduction
for amounts actually received up to such estimated amount to the extent
included in Net Income in a future period),
(xviii) [reserved],and
(xix) withoutduplication, an amount equal to the amount of distributions
actually made to any parent or equity holder of such person in respect ofsuch
period in accordance with Section 6.06(b)(v) shall be included as though such
amounts had been paid as income taxes directlyby such person for such period.
"
Consolidated TotalAssets
" shall mean, as of any date of determination, the total assets of the
Borrower and the consolidated Subsidiaries withoutgiving effect to any
impairment or amortization of the amount of intangible assets since the
Closing Date, determined on a consolidatedbasis in accordance with GAAP, as
set forth on the consolidated balance sheet of the Borrower as of the last day
of the fiscal
21
quarter most recently ended for which financialstatements have been (or were
required to be) delivered pursuant to the First Incremental Assumption and
Amendment Agreement, Section5.04(a) or Section 5.04(b), as applicable,
calculated on a Pro Forma Basis after giving effect to any acquisition or
Disposition of aperson or assets that may have occurred on or after the last
day of such fiscal quarter.
"
Continuing Letterof Credit
" shall have the meaning assigned to such term in Section 2.05(k).
"
Control
"shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person,whether through
the ownership of voting securities, by contract or otherwise, and "
Controlling
" and "
Controlled
"shall have meanings correlative thereto.
"
Creation Costs
"shall mean the costs associated with the marketing, sale, installation and
equipping of alarm systems and other security, automation,or related equipment
actually incurred in such current period less the related installation revenue
recognized in such current period;
provided
, that such amount shall not in any event be less than $0.
"
Credit Event
"shall have the meaning assigned to such term in Article IV.
"
Cumulative Credit
"shall mean, at any date, an amount, not less than zero in the aggregate,
determined on a cumulative basis equal to, without duplication:
(a) thegreater of $207,500,000 and 0.075 times the EBITDA calculated on
a Pro Forma Basis for the then most recently ended Test Period,
plus
(b) theCumulative Retained Excess Cash Flow Amount at such time,
plus
(c) theaggregate amount of proceeds received after the Closing Date and
prior to such time that would have constituted Net Proceeds pursuantto clause
(a) of the definition thereof, except for the operation of clause (x), (y) or
(z) of the second provisothereof (the "
Below Threshold Asset Sale Proceeds
"),
plus
(d) (i) thecumulative amount of proceeds (including cash and the fair
market value (as determined in good faith by the Borrower) of property
otherthan cash) from the sale of Equity Interests of the Borrower, Holdings or
any Parent Entity after the Closing Date and on or prior tosuch time
(including upon exercise of warrants or options), which proceeds have been
contributed as common equity to the capital of theBorrower, and (ii) common
Equity Interests of Holdings, the Borrower or any Parent Entity issued upon
conversion of Indebtedness(other than Indebtedness that is contractually
subordinated to the Loan Obligations in right of payment) of the Borrower or
any Subsidiaryowed to a person other than the Borrower or a Subsidiary not
previously applied for a purpose other than use in the Cumulative Credit;
provided
, that this clause (d) shall exclude Permitted Cure Securities, sales of
Equity Interests financed as contemplatedby Section 6.04(e) or used as
described in clause (ix) of the definition of "EBITDA" and any amounts used to
financethe payments or distributions in respect of any Junior Financing
pursuant to Section 6.09(b),
plus
(e) 100%of the aggregate amount of contributions as common equity to the
capital of the Borrower received in cash (and the fair market value
(asdetermined in good faith by the Borrower) of property other than cash)
after the Closing Date (subject to the same exclusions as are applicableto
clause (d) above);
plus
(f) 100%of the aggregate principal amount of any Indebtedness (including
the liquidation preference or maximum fixed repurchase price, as thecase may
be, of any Disqualified
22
Stock) of the Borrower or any Subsidiarythereof issued after the Closing Date
(other than Indebtedness issued to a Subsidiary), which has been converted
into or exchanged forEquity Interests (other than Disqualified Stock) in the
Borrower, Holdings or any Parent Entity,
plus
(g) 100%of the aggregate amount received by the Borrower or any
Subsidiary in cash (and the fair market value (as determined in good faith
bythe Borrower) of property other than cash received by the Borrower or any
Subsidiary) after the Closing Date from:
(A) thesale (other than to the Borrower or any Subsidiary) of the Equity
Interests of an Unrestricted Subsidiary to the extent not increasingany other
basket under Section 6.04, or
(B) anydividend or other distribution by an Unrestricted Subsidiary to
the extent not increasing any other basket under Section 6.04,
plus
(h) inthe event any Unrestricted Subsidiary has been redesignated as a
Subsidiary or has been merged, consolidated or amalgamated with or into,or
transfers or conveys its assets to, or is liquidated into, Holdings, the
Borrower or any Subsidiary, the fair market value (as determinedin good faith
by the Borrower) of the Investments of Holdings, the Borrower or any
Subsidiary in such Unrestricted Subsidiary at the timeof such redesignation,
combination or transfer (or of the assets transferred or conveyed, as
applicable) to the extent not increasingany other basket under Section 6.04,
plus
(i) anamount equal to any returns (including dividends, interest,
distributions, returns of principal, profits on sale, repayments, income
andsimilar amounts) actually received by the Borrower or any Subsidiary in
respect of any Investments made pursuant to Section 6.04(j)(Y),
minus
(j) anyamounts thereof used to make Investments pursuant to Section
6.04(j)(Y) after the Closing Date prior to such time,
minus
(k) thecumulative amount of Restricted Payments made pursuant to Section
6.06(e) after the Closing Date prior to such time,
minus
(l) anyamount thereof used to make payments or distributions in respect
of Junior Financings pursuant to Section 6.09(b)(i)(E) after theClosing Date
prior to such time (other than payments made with proceeds from the issuance
of Equity Interests that were excluded fromthe calculation of the Cumulative
Credit pursuant to clause (d) above);
provided
,
however
, (A) forpurposes of Section 6.06(e), the calculation of the Cumulative Credit
shall not include any Below Threshold Asset Sale Proceeds exceptto the extent
they are used as contemplated in clauses (j) and (l) above, (B) the Cumulative
Credit shall only be increasedpursuant to clause (b) above to the extent that
Excess Cash Flow for any Excess Cash Flow Period exceeds the ECF Threshold
Amount(or, with respect to any Excess Cash Flow Interim Period, a pro rata
portion of such amount), (C) for purposes of Section 6.06(e) and6.09(b)(i)(E),
the calculation of the Cumulative Credit shall not include any amounts from
clause (b) of the definition of "CumulativeRetained Excess Cash Flow Amount"
and (D) the Cumulative Credit shall not be increased as a result of the 2016
Equity Contributionor the Preferred Securities Contribution.
"
Cumulative RetainedExcess Cash Flow Amount
" shall mean, at any date, an amount (which shall not be less than zero in the
aggregate) determinedon a cumulative basis equal to:
23
(a) theaggregate cumulative sum of the Retained Percentage of Excess
Cash Flow for all Excess Cash Flow Periods ending on or after the
EighthAmendment Agreement Effective Date and prior to such date,
plus
(b) foreach Excess Cash Flow Interim Period ending on or after the
Eighth Amendment Agreement Effective Date and prior to such date but as
towhich the corresponding Excess Cash Flow Period has not ended, an amount
equal to the Retained Percentage of Excess Cash Flow for suchExcess Cash Flow
Interim Period,
minus
(c) thecumulative amount of all Retained Excess Cash Flow Overfundings
as of such date.
"
Cure Amount
"shall have the meaning assigned to such term in Section 7.03.
"
Cure Right
"shall have the meaning assigned to such term in Section 7.03.
"
Current Assets
"shall mean, with respect to the Borrower and the Subsidiaries on a
consolidated basis at any date of determination, the sum of (a) allassets
(other than cash and Permitted Investments or other cash equivalents) that
would, in accordance with GAAP, be classified on a consolidatedbalance sheet
of the Borrower and the Subsidiaries as current assets at such date of
determination, other than amounts related to currentor deferred Taxes based on
income or profits, and (b) in the event that a Permitted Securitization
Financing is accounted for offbalance sheet, (x) gross accounts receivable
comprising part of the Securitization Assets subject to such Permitted
SecuritizationFinancing less (y) collections against the amounts sold pursuant
to clause (x).
"
Current Liabilities
"shall mean, with respect to the Borrower and the Subsidiaries on a
consolidated basis at any date of determination, all liabilities thatwould, in
accordance with GAAP, be classified on a consolidated balance sheet of the
Borrower and the Subsidiaries as current liabilitiesat such date of
determination, other than (a) the current portion of any Indebtedness, (b)
accruals of Interest Expense (excludingInterest Expense that is due and
unpaid), (c) accruals for current or deferred Taxes based on income or
profits, (d) accruals,if any, of transaction costs resulting from the 2015
Transactions, the ADT Transactions, the 2019 March Transactions or the 2019
SeptemberTransactions, (e) accruals of any costs or expenses related to (i)
severance or termination of employees prior to the Closing Dateor (ii)
bonuses, pension and other post-retirement benefit obligations, and (f)
accruals for add-backs to EBITDA included in clauses (a)(iv),(a)(v), and
(a)(vii) of the definition of such term.
"
Daily Simple SOFR
"shall mean, for any day (a "
SOFR Rate Day
"), a rate per annum equal to the greater of (a) SOFR for the day (such day"
i
") that is five U.S. Government Securities Business Days prior to (i) if such
SOFR Rate Day is a U.S. GovernmentSecurities Business Day, such SOFR Rate Day
or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business
Day, the U.S. GovernmentSecurities Business Day immediately preceding such
SOFR Rate Day, in each case, as such SOFR is published by the SOFR
Administrator onthe SOFR Administrator's Website, and (b) the Floor. If by
5:00 pm (New York City time) on the second (2
nd
) U.S.Government Securities Business Day immediately following any day "
i
", the SOFR in respect of such day "
i
"has not been published on the SOFR Administrator's Website and a Benchmark
Replacement Date with respect to the Daily Simple SOFRhas not occurred, then
the SOFR for such day "
i
" will be the SOFR as published in respect of the first preceding
U.S.Government Securities Business Day for which such SOFR was published on
the SOFR Administrator's Website;
provided
that anySOFR determined pursuant to this sentence shall be utilized for
purposes of calculation of Daily Simple SOFR for no more than three
(3)consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a
change in SOFR shall be effective from and including the effectivedate of such
change in SOFR without notice to the Borrower.
24
"
Debt Fund AffiliateLender
" shall mean entities managed by the Fund or funds advised by its affiliated
management companies that are primarily engagedin, or advise funds or other
investment vehicles that are engaged in, making, purchasing, holding or
otherwise investing in commercialloans, bonds and similar extensions of credit
or securities in the ordinary course and for which no personnel making
investment decisionsin respect of any equity fund which has a direct or
indirect equity investment in Holdings, the Borrower or the Subsidiaries has
the rightto make any investment decisions.
"
Debt Service
"shall mean, with respect to the Borrower and the Subsidiaries on a
consolidated basis for any period, Cash Interest Expense for such period,
plus
scheduled principal amortization of Consolidated Debt for such period.
"
Debtor Relief Laws
"shall mean the Bankruptcy Code of the United States of America, and all other
liquidation, conservatorship, bankruptcy, assignment forthe benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the UnitedStates of America or other
applicable jurisdictions from time to time in effect.
"
December 2016 EngagementLetter
" shall mean that certain Engagement Letter dated as of December 2, 2016 by
and among the Borrower, Barclays Bank PLC,Deutsche Bank AG New York Branch,
Royal Bank of Canada and Apollo Global Securities, LLC.
"
Default
"shall mean any event or condition that upon notice, lapse of time or both
would constitute an Event of Default.
"
Defaulting Lender
"shall mean, subject to Section 2.22, any Lender that (a) has failed to (i)
fund all or any portion of its Loans withintwo Business Days of the date such
Loans were required to be funded hereunder or (ii) pay to the Administrative
Agent, any IssuingBank, the Swingline Lender or any other Lender any other
amount required to be paid by it hereunder (including in respect of its
participationin Letters of Credit or Swingline Loans) within two Business Days
of the date when due, (b) has notified the Borrower, the SwinglineLender, the
Administrative Agent or any Issuing Bank in writing that it does not intend or
expect to comply with its funding obligationshereunder or generally under
other agreements in which it commits to extend credit, or has made a public
statement to that effect, (c) hasfailed, within three Business Days after
written request by the Administrative Agent or the Borrower, to confirm in
writing to the AdministrativeAgent and the Borrower that it will comply with
its prospective funding obligations hereunder (
provided
that such Lender shallcease to be a Defaulting Lender pursuant to this clause
(c) upon receipt of such written confirmation by the Administrative Agentand
the Borrower) or (d) has, or has a direct or indirect parent company that has,
(i) become the subject of a proceeding underany Debtor Relief Law, (ii) had
appointed for it a receiver, custodian, conservator, trustee, administrator,
assignee for the benefitof creditors or similar person charged with
reorganization or liquidation of its business or assets, including any state
or federal regulatoryauthority acting in such a capacity, including the
Federal Deposit Insurance Corporation 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 interestin that Lender or any direct or
indirect parent company thereof by a Governmental Authority so long as such
ownership interest does notresult in or provide such Lender with immunity from
the jurisdiction of courts within the United States of America or from the
enforcementof judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavowor
disaffirm any contracts or agreements made with such Lender. Any determination
by the Administrative Agent that a Lender is a DefaultingLender under any one
or more of clauses (a) through (d) above shall be conclusive and binding
absent manifest error, and such Lendershall be deemed to be a Defaulting
Lender (subject to Section 2.22) upon delivery of written notice of such
determination to theBorrower, each Issuing Bank, the Swingline Lender and each
Lender.
25
"
Delaware DividedLLC
" shall mean any limited liability company which has been formed upon the
consummation of a Delaware LLC Division.
"
Delaware DividedLP
" shall mean any limited partnership which has been formed upon the
consummation of a Delaware LP Division.
"
Delaware LLC Division
"shall mean the statutory division of any limited liability company into two
or more limited liability companies pursuant to Section 18-217of the Delaware
Limited Liability Company Act or a comparable provision of any other
Requirement of Law.
"
Delaware LP Division
"shall mean the statutory division of any limited partnership into two or more
limited partnerships pursuant to Section 17-220 of the DelawareLimited
Partnership Act or a comparable provision of any other Requirement of Law.
"
Designated Non-CashConsideration
" shall mean the fair market value (as determined in good faith by the
Borrower) of non-cash consideration receivedby the Borrower or one of its
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-Cash Considerationpursuant to a certificate of a Responsible
Officer of the Borrower, setting forth such valuation, less the amount of cash
or cash equivalentsreceived in connection with a subsequent disposition of
such Designated Non-Cash Consideration.
"
Disinterested Director
"shall mean, with respect to any person and transaction, a member of the Board
of Directors of such person who does not have any materialdirect or indirect
financial interest in or with respect to such transaction.
"
Dispose
"or "
Disposed
of" shall mean to convey, sell, lease, sell and leaseback, assign, farm-out,
transfer or otherwise disposeof any property, business or asset (including the
issuance of Equity Interests by a Subsidiary and the disposition of any
property, businessor asset to a Delaware Divided LLC or Delaware Divided LP
pursuant to a Delaware LLC Division or Delaware LP Division, respectively).The
term "
Disposition
" shall have a correlative meaning to the foregoing.
"
Disqualified Stock
"shall mean, with respect to any person, any Equity Interests of such person
that, by its terms (or by the terms of any security or otherEquity Interests
into which it is convertible or for which it is exchangeable), or upon the
happening of any event or condition (a) maturesor is mandatorily redeemable
(other than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (exceptas a result of a change of control or asset
sale so long as any rights of the holders thereof upon the occurrence of a
change of controlor asset sale event shall be subject to the prior repayment
in full of the Loans and all other Loan Obligations that are accrued and
payableand the termination of the Commitments), (b) is redeemable at the
option of the holder thereof (other than solely for Qualified EquityInterests),
in whole or in part, (c) provides for the scheduled payments of dividends in
cash, or (d) is or becomes convertibleinto or exchangeable for Indebtedness or
any other Equity Interests that would constitute Disqualified Stock, in each
case, prior to thedate that is ninety-one days after the Latest Maturity Date
in effect at the time of issuance thereof (
provided
, that only theportion of the Equity Interests that so mature or are
mandatorily redeemable, are so convertible or exchangeable or are so
redeemableat the option of the holder thereof prior to such date shall be
deemed to be Disqualified Stock). Notwithstanding the foregoing: (i) anyEquity
Interests issued to any employee or to any plan for the benefit of employees
of the Borrower or the Subsidiaries or by any suchplan to such employees shall
not constitute Disqualified Stock solely because they may be required to be
repurchased by the Borrower inorder to satisfy applicable statutory or
regulatory obligations or as a result of such employee's termination, death or
disabilityand (ii) any class of Equity Interests of such person that by its
terms authorizes such person to
26
satisfy its obligations thereunder by deliveryof Equity Interests that are not
Disqualified Stock shall not be deemed to be Disqualified Stock.
"
Documentation Agents
"shall mean, collectively, Barclays Bank PLC, Deutsche Bank Securities Inc.,
Apollo Global Securities, LLC, Mizuho Bank, Ltd., RBC CapitalMarkets, LLC,
Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., MUFG Bank,
Ltd., BNP Paribas Securities Corp., CitizensBank, N.A., Fifth Third Bank,
National Association and ING Capital LLC.
"
Dollar Equivalent
"shall mean, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amountdenominated in any
currency other than Dollars, the equivalent amount thereof in Dollars as
determined by the Administrative Agent atsuch time on the basis of the Spot
Rate (determined in respect of the most recent Revaluation Date or other
applicable date of determination)for the purchase of Dollars with such
currency.
"
Dollars
"or "
$
" shall mean lawful money of the United States of America.
"
Domestic Subsidiary
"shall mean any Subsidiary that is not a Foreign Subsidiary.
"
Early 2026 FirstLien Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of "Term B-1
Facility MaturityDate".
"
Early 2027 FirstLien Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of "Term B-1
Facility MaturityDate".
"
Early 2028 SecondLien Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of "Term B-1
Facility MaturityDate".
"
Early 2029 FirstLien Notes Maturity Test Date
" shall have the meaning assigned to such term in the definition of "Term B-1
Facility MaturityDate".
"
Early SpecifiedRefinancing Indebtedness Maturity Test Date
" shall have the meaning assigned to such term in the definition of "Term
B-1Facility Maturity Date".
"
EBITDA
"shall mean, with respect to the Borrower and the Subsidiaries on a
consolidated basis for any period, the Consolidated Net Income of theBorrower
and the Subsidiaries for such period
plus
(a) the sum of (in each case without duplication and to the extent
therespective amounts described in subclauses (i) through (xiii) of this
clause (a) reduced such Consolidated Net Income (andwere not excluded
therefrom) for the respective period for which EBITDA is being determined):
(i) provisionfor Taxes based on income, profits or capital of the
Borrower and the Subsidiaries for such period, including, without limitation,
state,franchise and similar taxes and foreign withholding taxes (including
penalties and interest related to taxes or arising from tax examinations),
(ii) InterestExpense (and to the extent not included in Interest
Expense, (x) all cash dividend payments (excluding items eliminated in
consolidation)on any series of preferred stock or Disqualified Stock and (y)
costs of surety bonds in connection with financing activities) ofthe Borrower
and the Subsidiaries for such period,
(iii) depreciationand amortization expenses of the Borrower and the
Subsidiaries for such period including the amortization of intangible assets,
deferredfinancing fees, Capitalized
27
Software Expenditures and capitalizedcustomer acquisition costs and
amortization of unrecognized prior service costs and actuarial gains and
losses related to pensions andother post-employment benefits,
(iv) businessoptimization expenses and other restructuring charges or
reserves (which, for the avoidance of doubt, shall include the effect of
inventoryoptimization programs, facility or branch closure, facility or branch
consolidations, retention, severance, systems establishment costs,contract
termination costs, future lease commitments and excess pension charges),
(v) anyother non-cash charges;
provided
, that for purposes of this subclause (v) of this clause (a), any non-cash
chargesor losses shall be treated as cash charges or losses in any subsequent
period during which cash disbursements attributable thereto aremade (but
excluding, for the avoidance of doubt, amortization of a prepaid cash item
that was paid in a prior period),
(vi) theamount of management, consulting, monitoring, transaction and
advisory fees and related expenses paid to the Fund or any Fund Affiliate(or
any accruals related to such fees and related expenses) during such period not
in contravention of this Agreement,
(vii) anyexpenses or charges (other than depreciation or amortization
expense as described in the preceding clause (iii)) related to any issuanceof
Equity Interests, Investment, acquisition, New Project, Disposition,
recapitalization or the incurrence, modification or repaymentof Indebtedness
permitted to be incurred by this Agreement (including a refinancing thereof)
(whether or not successful), including (w) suchfees, expenses or charges
related to the Second Lien Credit Agreement, the First Incremental Assumption
and Amendment Agreement, the SecondPriority Senior Secured Notes and this
Agreement, (x) any amendment or other modification of the Obligations or other
Indebtednessand (y) commissions, discounts, yield and other fees and charges
(including any interest expense) related to any Permitted SecuritizationFinancin
g,
(viii) theamount of loss or discount in connection with a Permitted
Securitization Financing,
(ix) anycosts or expense incurred pursuant to any management equity plan
or stock option plan or any other management or employee benefit planor
agreement or any stock subscription or shareholder agreement, to the extent
that such costs or expenses are funded with cash proceedscontributed to the
capital of the Borrower or a Subsidiary Loan Party (other than contributions
received from the Borrower or anotherSubsidiary Loan Party) or net cash
proceeds of an issuance of Equity Interests of the Borrower (other than
Disqualified Stock),
(x) theamount of any loss attributable to a New Project, until the date
that is 12 months after the date of completing the construction, acquisition,ass
embling or creation of such New Project, as the case may be;
provided
, that (A) such losses are reasonably identifiableand factually supportable
and certified by a Responsible Officer of the Borrower and (B) losses
attributable to such New Projectafter 12 months from the date of completing
such construction, acquisition, assembling or creation, as the case may be,
shall not be includedin this clause (x),
(xi) withrespect to any joint venture that is not a Subsidiary and
solely to the extent relating to any net income referred to in clause (v)
ofthe definition of "Consolidated Net Income," an amount equal to the
proportion of those items described in clauses (i) and(ii) above relating to
such joint venture corresponding to the Borrower's and the Subsidiaries'
proportionate share ofsuch joint venture's Consolidated Net Income (determined
as if such joint venture were a Subsidiary),
28
(xii) one-timecosts associated with commencing Public Company
Compliance, and
(xiii) CreationCosts;
minus
(b) the sum of (without duplicationand to the extent the amounts described in
this clause (b) increased such Consolidated Net Income for the respective
period for whichEBITDA is being determined) non-cash items increasing
Consolidated Net Income of the Borrower and the Subsidiaries for such period
(butexcluding any such items (A) in respect of which cash was received in a
prior period or will be received in a future period or (B) whichrepresent the
reversal of any accrual of, or cash reserve for, anticipated cash charges that
reduced EBITDA in any prior period).
"
ECF Threshold Amount
"shall have the meaning assigned to such term in Section 2.11(c).
"
EEA Financial Institution
"shall mean (a) any credit institution or investment firm established in any
EEA Member Country which is subject to the supervision ofan EEA Resolution
Authority, (b) any entity established in an EEA Member Country which is a
parent of an institution described in clause(a) of this definition, or (c) any
financial institution established in an EEA Member Country which is a
subsidiary of an institutiondescribed in clauses (a) or (b) of this definition
and is subject to consolidated supervision with its parent;
"
EEA Member Country
"shall mean any of the member states of the European Union, Iceland,
Liechtenstein and Norway.
"
EEA ResolutionAuthority
" shall mean any public administrative authority or any person entrusted with
public administrative authority of anyEEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial
Institution.
"
Eighth Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Eighth AmendmentAgreement
" shall mean the Amendment Agreement No. 8, dated as of March 15, 2019 and
effective as of the Eighth Amendment AgreementEffective Date, by and among
Holdings, the Borrower, the Subsidiary Loan Parties party thereto, the Lenders
party thereto and the AdministrativeAgent.
"
Eighth AmendmentAgreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Election Date
"shall have the meaning assigned to such term in the definition of the term
"Pro Forma Basis".
"
Eleventh Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Eleventh IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement dated as of
the Eleventh IncrementalAssumption and Amendment Agreement Effective Date, by
and among Holdings, the Borrower, ADTSC, the Subsidiary Loan Parties party
thereto,the Lenders party thereto, the Issuing Banks party thereto, the
Swingline Lender and the Administrative Agent.
29
"
Eleventh IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
EMU Legislation
"shall mean the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unifiedEuropean
currency.
"
Environment
"shall mean ambient and indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surfaceor subsurface
strata, natural resources such as flora and fauna, the workplace or as
otherwise defined in any Environmental Law.
"
Environmental Laws
"shall mean all applicable laws (including common law), rules, regulations,
codes, ordinances, orders, binding agreements, decrees or judgments,promulgated
or entered into by or with any Governmental Authority, relating in any way to
the Environment, preservation or reclamationof natural resources, the
generation, use, transport, management, Release or threatened Release of, or
exposure to, any Hazardous Materialor to public or employee health and safety
matters (to the extent relating to the environment or Hazardous Materials).
"
Environmental Permits
"shall have the meaning assigned to such term in Section 3.16.
"
Equity Interests
"of any person shall mean any and all shares, interests, rights to purchase or
otherwise acquire, warrants, options, participations orother equivalents of or
interests in (however designated) equity or ownership of such person,
including any preferred stock, any limitedor general partnership interest and
any limited liability company membership interest, and any securities or other
rights or interestsconvertible into or exchangeable for any of the foregoing.
"
ERISA
"shall mean the Employee Retirement Income Security Act of 1974, as the same
may be amended from time to time and any final regulationspromulgated and the
rulings issued thereunder.
"
ERISA Affiliate
"shall mean any trade or business (whether or not incorporated) that, together
with Holdings, the Borrower or a Subsidiary, is treatedas a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section
302 of ERISA and Section 412of the Code, is treated as a single employer under
Section 414 of the Code.
"
ERISA Event
"shall mean (a) any Reportable Event or the requirements of Section 4043(b) of
ERISA apply with respect to a Plan; (b) withrespect to any Plan, the failure
to satisfy the minimum funding standard under Section 412 of the Code or
Section 302 of ERISA,whether or not waived; (c) a determination that any Plan
is, or is expected to be, in "at-risk" status (as defined inSection 303(i)(4)
of ERISA or Section 430(i)(4) of the Code); (d) the filing pursuant to Section
412(c) of the Codeor Section 302(c) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan, the failure tomake by
its due date a required installment under Section 430(j) of the Code with
respect to any Plan or the failure to make anyrequired contribution to a
Multiemployer Plan; (e) the incurrence by Holdings, the Borrower, a Subsidiary
or any ERISA Affiliateof any liability under Title IV of ERISA with respect to
the termination of any Plan or Multiemployer Plan; (f) the receipt by
Holdings,the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminateany Plan
or to appoint a trustee to administer any Plan under Section 4042 of ERISA;
(g) the incurrence by Holdings, the Borrower,a Subsidiary or any ERISA
Affiliate of any liability with respect to the withdrawal or partial
withdrawal from any Plan or MultiemployerPlan; (h) the receipt by Holdings,
the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the
receipt by any MultiemployerPlan from Holdings, the Borrower, a Subsidiary or
any ERISA Affiliate of any notice, concerning the impending imposition of
WithdrawalLiability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning ofTitle IV
30
of ERISA, or in "endangered" or"critical" status, within the meaning of
Section 432 of the Code or Section 305 of ERISA; (i) the conditionsfor
imposition of a lien under Section 303(k) of ERISA shall have been met with
respect to any Plan; or (j) the withdrawal of anyof Holdings, the Borrower, a
Subsidiary or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA
during a plan year inwhich such entity was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA or a cessation of operationsthat is treated as
such a withdrawal under Section 4062(e) of ERISA.
"
EU Bail-In LegislationSchedule
" shall mean the EU Bail-In Legislation Schedule published by the Loan Market
Association (or any successor person),as in effect from time to time.
"
Euro
"shall mean the lawful currency of the Participating Member States introduced
in accordance with the EMU Legislation.
"
Event of Default
"shall have the meaning assigned to such term in Section 7.01.
"
Excess Cash Flow
"shall mean, with respect to the Borrower and its Subsidiaries on a
consolidated basis for any Applicable Period, EBITDA of the Borrowerand its
Subsidiaries on a consolidated basis for such Applicable Period,
minus
, without duplication, (A):
(a) DebtService for such Applicable Period;
provided
, that with respect to any such amounts to be paid after the close of such
ApplicablePeriod that are deducted in such Applicable Period, any amount so
deducted shall not be deducted again in a subsequent Applicable Period,
(b) theamount of any voluntary payment permitted hereunder of term
Indebtedness during such Applicable Period (other than any voluntary
prepaymentof the Term Loans or term indebtedness constituting Other First Lien
Debt, each of which shall be the subject of Section 2.11(c))and the amount of
any voluntary payments of revolving Indebtedness to the extent accompanied by
permanent reductions of any revolvingfacility commitments (other than any
voluntary prepayments of the Revolving Facility Commitment or revolving
facility commitments constitutingOther First Lien Debt, each of which shall be
the subject of Section 2.11(c)) during such Applicable Period to the extent an
equal amountof loans thereunder was simultaneously repaid, so long as the
amount of such prepayment is not already reflected in Debt Service,
(c) (i) CapitalExpenditures by the Borrower and the Subsidiaries on a
consolidated basis during such Applicable Period that are paid in cash and
(ii) theaggregate consideration paid in cash during the Applicable Period in
respect of Permitted Business Acquisitions and other Investmentspermitted
hereunder (excluding Permitted Investments and intercompany Investments in
Subsidiaries and Investments made pursuant to Section6.04(j)(Y) (unless made
pursuant to clause (a) of the definition of "Cumulative Credit")),
(d) CapitalExpenditures, Permitted Business Acquisitions, New Project
expenditures or other permitted Investments (excluding Permitted Investmentsand
intercompany Investments in Subsidiaries), or payments in respect of planned
restructuring activities, that the Borrower or any Subsidiaryshall, during
such Applicable Period, become obligated to make or otherwise anticipated to
make payments with respect thereto but thatare not made during such Applicable
Period;
provided
, that (i) the Borrower shall deliver a certificate to the AdministrativeAgent
not later than the date required for the delivery of the certificate pursuant
to Section 2.11(c), signed by a Responsible Officerof the Borrower and
certifying that payments in respect of such Capital Expenditures, Permitted
Business Acquisitions, New Project expendituresor other permitted Investments
or planned restructuring activities are expected to be made in the following
Excess
31
Cash Flow Period, and (ii) any amountso deducted shall not be deducted again
in a subsequent Applicable Period,
(e) Taxespaid in cash by Holdings and its Subsidiaries on a consolidated
basis during such Applicable Period or that will be paid or distributedwithin
six months after the close of such Applicable Period including the amount of
any distributions pursuant to Section 6.06(b)(iii)and Section 6.06(b)(v)
during such Applicable Period;
provided
, that with respect to any such amounts to be paid or distributedafter the
close of such Applicable Period, (i) any amount so deducted shall not be
deducted again in a subsequent Applicable Period,and (ii) appropriate reserves
shall have been established in accordance with GAAP,
(f) anamount equal to any increase in Working Capital (other than any
increase arising from the recognition or de-recognition of any CurrentAssets
or Current Liabilities upon an acquisition or disposition of a business) of
the Borrower and its Subsidiaries for such ApplicablePeriod and any
anticipated increase, estimated by the Borrower in good faith, for the
following Excess Cash Flow Period,
(g) cashexpenditures made in respect of Hedging Agreements during such
Applicable Period, to the extent not reflected in the computation of EBITDAor
Interest Expense,
(h) permittedRestricted Payments paid in cash by the Borrower during
such Applicable Period and permitted Restricted Payments paid by any
Subsidiaryto any person other than Holdings, the Borrower or any of the
Subsidiaries during such Applicable Period, in each case in accordance
withSection 6.06 (other than Section 6.06(e) (unless made pursuant to clause
(a) of the definition of "Cumulative Credit"));
provided
that Restricted Payments made in accordance with Section 6.06(o) shall not
reduce Excess Cash Flow to the extent fundedwith the proceeds of the issuance
or incurrence of long-term Indebtedness,
(i) amountspaid in cash during such Applicable Period on account of (A)
items that were accounted for as non-cash reductions of Net Income
indetermining Consolidated Net Income or as non-cash reductions of
Consolidated Net Income in determining EBITDA of the Borrower and
itsSubsidiaries in a prior Applicable Period and (B) reserves or accruals
established in purchase accounting,
(j) tothe extent not deducted in the computation of Net Proceeds in
respect of any asset disposition or condemnation giving rise thereto,
theamount of any mandatory prepayment of Indebtedness (other than Indebtedness
created hereunder or under any other Loan Document), togetherwith any
interest, premium or penalties required to be paid (and actually paid) in
connection therewith,
(k) theamount related to items that were added to or not deducted from
Net Income in calculating Consolidated Net Income or were added to ornot
deducted from Consolidated Net Income in calculating EBITDA to the extent such
items represented a cash payment (which had not reducedExcess Cash Flow upon
the accrual thereof in a prior Applicable Period), or an accrual for a cash
payment, by the Borrower and its Subsidiariesor did not represent cash
received by the Borrower and its Subsidiaries, in each case on a consolidated
basis during such Applicable Period,and
(l) theamount of (A) any deductions attributable to minority interests
that were added to or not deducted from Net Income in calculating
ConsolidatedNet Income and (B) EBITDA of
32
joint ventures and minority investeesadded to Consolidated Net Income in
calculating EBITDA pursuant to the last paragraph of the definition thereof,
plus
, without duplication, (B):
(a) anamount equal to any decrease in Working Capital (other than any
decrease arising from the recognition or de-recognition of any CurrentAssets
or Current Liabilities upon an acquisition or disposition of a business) of
the Borrower and its Subsidiaries for such ApplicablePeriod,
(b) allamounts referred to in clauses (A)(b), (A)(c) and (A)(d) above to
the extent funded with the proceeds of the issuance or theincurrence of
Indebtedness (including Capitalized Lease Obligations and purchase money
Indebtedness, but excluding proceeds of extensionsof credit under any
revolving credit facility), the sale or issuance of any Equity Interests
(including any capital contributions) andany loss, damage, destruction or
condemnation of, or any sale, transfer or other disposition (including any
sale and leaseback of assetsand any mortgage or lease of Real Property) to any
person of any asset or assets, in each case to the extent there is a
correspondingdeduction from Excess Cash Flow above,
(c) tothe extent any permitted Capital Expenditures, Permitted Business
Acquisitions or permitted Investments referred to in clause (A)(d)above do not
occur in the following Applicable Period of the Borrower specified in the
certificate of the Borrower provided pursuant toclause (A)(d) above, the
amount of such Capital Expenditures, Permitted Business Acquisitions or
permitted Investments that werenot so made in such following Applicable Period,
(d) cashpayments received in respect of Hedging Agreements during such
Applicable Period to the extent (i) not included in the computationof EBITDA
or (ii) such payments do not reduce Cash Interest Expense,
(e) anyextraordinary or nonrecurring gain realized in cash during such
Applicable Period (except to the extent such gain consists of Net
Proceedssubject to Section 2.11(b)), and
(f) theamount related to items that were deducted from or not added to
Net Income in connection with calculating Consolidated Net Income or
werededucted from or not added to Consolidated Net Income in calculating
EBITDA to the extent either (i) such items represented cashreceived by the
Borrower or any Subsidiary or (ii) such items do not represent cash paid by
the Borrower or any Subsidiary, in eachcase on a consolidated basis during
such Applicable Period.
"
Excess Cash FlowInterim Period
" shall mean, (x) during any Excess Cash Flow Period, any one, two, or
three-quarter period (a) commencingon the later of (i) the end of the
immediately preceding Excess Cash Flow Period and (ii) if applicable, the end
of any priorExcess Cash Flow Interim Period occurring during the same Excess
Cash Flow Period and (b) ending on the last day of the most recentlyended
fiscal quarter (other than the last day of the fiscal year) during such Excess
Cash Flow Period for which financial statements areavailable and (y) during
the period from the Closing Date until the beginning of the first Excess Cash
Flow Period, any period commencingon the Closing Date and ending on the last
day of the most recently ended fiscal quarter for which financial statements
are available.
"
Excess Cash FlowPeriod
" shall mean each fiscal year of the Borrower, commencing with the fiscal year
of the Borrower ending on December 31,2017.
"
Exchange Act
"shall mean the Securities Exchange Act of 1934, as amended.
33
"
Excluded Contributions
"shall mean the cash and Permitted Investments received by the Borrower after
the Closing Date from: (a) contributions to its common EquityInterests, and
(b) the sale (other than to a Subsidiary of the Borrower or to any Subsidiary
management equity plan or stock option planor any other management or employee
benefit plan or agreement) of Qualified Equity Interests of the Borrower, in
each case designatedas Excluded Contributions pursuant to a certificate of a
Responsible Officer of Holdings or the Borrower on or promptly after the
datesuch capital contributions are made or the date such Equity Interest is
sold, as the case may be.
"
Excluded Indebtedness
"shall mean all Indebtedness not incurred in violation of Section 6.01.
"
Excluded Property
"shall have the meaning assigned to such term in Section 5.10(g).
"
Excluded Securities
"shall mean any of the following:
(a) anyEquity Interests or Indebtedness with respect to which the
Collateral Agent and the Borrower reasonably agree that the cost or other
consequencesof pledging such Equity Interests or Indebtedness in favor of the
Secured Parties under the Security Documents are likely to be excessivein
relation to the value to be afforded thereby;
(b) inthe case of any pledge of voting Equity Interests of any Foreign
Subsidiary that is a CFC (in each case, that is owned directly by theBorrower
or a Subsidiary Loan Party) to secure the Obligations, any voting Equity
Interest of such Foreign Subsidiary in excess of 65%of the outstanding Equity
Interests of such class;
(c) inthe case of any pledge of voting Equity Interests of any FSHCO (in
each case, that is owned directly by the Borrower or a Subsidiary LoanParty)
to secure the Obligations, any voting Equity Interest of such FSHCO in excess
of 65% of the outstanding Equity Interests of suchclass;
(d) anyEquity Interests or Indebtedness to the extent the pledge thereof
would be prohibited by any Requirement of Law;
(e) anyEquity Interests of any person that is not a Wholly Owned
Subsidiary to the extent (A) that a pledge thereof to secure the Obligationsis
prohibited by (i) any applicable organizational documents, joint venture
agreement or shareholder agreement or (ii) any othercontractual obligation
with an unaffiliated third party not in violation of Section 6.09(c) (other
than, in this subclause (A)(ii), customarynon-assignment provisions which are
ineffective under Article 9 of the Uniform Commercial Code or other applicable
Requirements ofLaw), (B) any organizational documents, joint venture agreement
or shareholder agreement (or other contractual obligation referredto in
subclause (A)(ii) above) prohibits such a pledge without the consent of any
other party;
provided
, that this clause(B) shall not apply if (1) such other party is a Loan Party
or a Wholly Owned Subsidiary or (2) consent has been obtainedto consummate
such pledge (it being understood that the foregoing shall not be deemed to
obligate the Borrower or any Subsidiary to obtainany such consent) and shall
apply for so long as such organizational documents, joint venture agreement or
shareholder agreement or replacementor renewal thereof is in effect, or (C) a
pledge thereof to secure the Obligations would give any other party (other
than a LoanParty or a Wholly Owned Subsidiary) to any organizational
documents, joint venture agreement or shareholder agreement governing such
EquityInterests (or other contractual obligation referred to in subclause
(A)(ii) above) the right to terminate its obligations thereunder(other than,
in the case of other contractual obligations referred to in subclause (A)(ii),
customary non-assignment provisions
34
which are ineffective under Article 9of the Uniform Commercial Code or other
applicable Requirement of Law);
(f) anyEquity Interests of any Immaterial Subsidiary, any Unrestricted
Subsidiary or any Special Purpose Securitization Subsidiary;
(g) anyEquity Interests of any Subsidiary of, or other Equity Interests
owned by, a Foreign Subsidiary;
(h) anyEquity Interests of any Subsidiary to the extent that the pledge
of such Equity Interests could reasonably be expected to result in
materialadverse tax consequences to the Borrower or any Subsidiary as
determined in good faith by the Borrower in consultation with the
AdministrativeAgent;
(i) anyEquity Interests that are set forth on Schedule 1.01(A) to this
Agreement or that have been identified on or prior to the ClosingDate in
writing to the Agent by a Responsible Officer of the Borrower and agreed to by
the Administrative Agent in writing;
(j) (x)any Equity Interests owned by Holdings, other than Equity
Interests of the Borrower and (y) any Indebtedness owned by Holdings; and
(k) anyMargin Stock.
"
Excluded Subsidiary
"shall mean any of the following (except as otherwise provided in clause (b)
of the definition of "Subsidiary Loan Party"):
(a)
each Immaterial Subsidiary,
(b)
each Domestic Subsidiary that is not a Wholly Owned Subsidiary (for so long as
such Subsidiary remains a non-Wholly Owned Subsidiary),
(c)
each Domestic Subsidiary that is prohibited from Guaranteeing or granting
Liens to secure the Obligations by any Requirement ofLaw or that would require
consent, approval, license or authorization of a Governmental Authority to
Guarantee or grant Liens to securethe Obligations (unless such consent,
approval, license or authorization has been received),
(d)
each Domestic Subsidiary that is prohibited by any applicable contractual
requirement (to the extent (x) existing on the ClosingDate or on the date such
person becomes a Subsidiary and (y) not entered into in contemplation of
causing such Domestic Subsidiary tobecome an Excluded Subsidiary) from
Guaranteeing or granting Liens to secure the Obligations on the Closing Date
or at the time such Subsidiarybecomes a Subsidiary not in violation of Section
6.09(c) (and for so long as such restriction or any replacement or renewal
thereof isin effect),
(e)
any Special Purpose Securitization Subsidiary,
(f)
any Foreign Subsidiary,
(g)
any Domestic Subsidiary (i) that is an FSHCO or (ii) that is a Subsidiary of a
Foreign Subsidiary that is a CFC,
(h)
any other Domestic Subsidiary with respect to which, (x) the Administrative
Agent and the Borrower reasonably agree that thecost or other consequences of
providing a Guarantee of or granting Liens to secure the Obligations are
likely to be excessive in relationto the value to be
35
afforded thereby or (y) in the caseof any person that becomes a Domestic
Subsidiary of Holdings after the Closing Date, providing such a Guarantee or
granting such Lienscould reasonably be expected to result in material adverse
tax consequences as determined in good faith by the Borrower in consultationwith
the Administrative Agent,
(i)
each Unrestricted Subsidiary, and
(j)
with respect to any Swap Obligation, any Subsidiary that is not an "eligible
contract participant" as defined in theCommodity Exchange Act and the
regulations thereunder.
"
Excluded Swap Obligation
"shall mean, with respect to any Guarantor, any Swap Obligation if, and to the
extent that, all or a portion of the Guarantee of such Guarantorof, or the
grant by such Guarantor of a security interest to secure, such Swap Obligation
(or any Guarantee thereof) is or becomes illegalunder the Commodity Exchange
Act or any rule, regulation or order of the Commodity Futures Trading
Commission (or the application or officialinterpretation of any thereof) by
virtue of such Guarantor's failure for any reason to constitute an "eligible
contract participant"as defined in the Commodity Exchange Act and the
regulations thereunder at the time the Guarantee of such Guarantor or the
grant of suchsecurity interest becomes effective with respect to such Swap
Obligation, unless otherwise agreed between the Administrative Agent andthe
Borrower. If a Swap Obligation arises under a master agreement governing more
than one swap, such exclusion shall apply only to theportion of such Swap
Obligation that is attributable to swaps for which such Guarantee or security
interest is or becomes illegal.
"
Excluded Taxes
"shall mean, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account ofany obligation of any
Loan Party hereunder or under any other Loan Document, (i) Taxes imposed on or
measured by its overall netincome or branch profits (however denominated, and
including (for the avoidance of doubt) any backup withholding in respect
thereof underSection 3406 of the Code or any similar provision of state, local
or foreign law), and franchise (and similar) Taxes imposed on it(in lieu of
net income Taxes), in each case by a jurisdiction (including any political
subdivision thereof) as a result of such recipientbeing organized in, having
its principal office in, or in the case of any Lender, having its applicable
Lending Office in, such jurisdiction,or as a result of any other present or
former connection with such jurisdiction (other than any such connection
arising solely from thisAgreement or any other Loan Documents or any
transactions contemplated thereunder), (ii) U.S. federal withholding Tax
imposed onany payment by or on account of any obligation of any Loan Party
hereunder or under any other Loan Document that is required to be imposedon
amounts payable to a Lender (other than to the extent such Lender is an
assignee pursuant to a request by the Borrower under Section 2.19(b)or
2.19(c)) pursuant to laws in force at the time such Lender becomes a party
hereto (or designates a new lending office), except to theextent that such
Lender (or its assignor, if any) was entitled, immediately prior to the
designation of a new lending office (or assignment),to receive additional
amounts or indemnification payments from any Loan Party with respect to such
withholding Tax pursuant to Section 2.17,(iii) any withholding Tax imposed on
any payment by or on account of any obligation of any Loan Party hereunder or
under any otherLoan Document that is attributable to the Administrative
Agent's, any Lender's or any other recipient's failure to complywith Section
2.17(d) or (e) or (iv) any Tax imposed under FATCA.
"
Excluded TransactionDebt
" shall mean all Indebtedness incurred by the Borrower in connection with the
ADT Transactions consisting of, or incurredto fund the payment of, any
original issue discount or upfront fees as a result of the exercise of the
"Market Flex" and/or"Securities Demand" provisions under the 2016 Fee Letter
in respect of the Term B-1 Loans and/or the 2016 Revolving FacilityCommitments
(as defined in the First Amended and Restated Credit Agreement) and the
extensions of credit thereunder and/or Indebtednessincurred under the Second
Priority Senior Secured Notes.
36
"
Existing ADT CreditAgreement
" shall mean that certain Five Year Senior Unsecured Revolving Credit
Agreement, dated as of June 22, 2012 and as amended,restated, supplemented or
otherwise modified prior to the Closing Date, by and among the Target, Tyco
International Ltd., the lendersparty thereto and Citibank, N.A., as
administrative agent.
"
Existing ADT Roll-OverNotes
" shall mean, collectively, (i) the $1,000,000,000 in aggregate principal
amount of the 3.50% Notes due 2022 (the "
2022Notes
"), (ii) the $750,000,000 in aggregate principal amount of the 4.875% Notes
due 2042 or 2032, as applicable, (iii) the$700,000,000 in aggregate principal
amount of the 4.125% Senior Notes due 2023 (the "
2023 Notes
"), (iv) the $1,000,000,000in aggregate principal amount of the 6.25% Senior
Notes due 2021 (the "
2021 Notes
") and (v) the $300,000,000 in aggregateprincipal amount of the 5.25% Senior
Notes due 2020 (the "
2020 Notes
").
"
Existing ADT ShortTerm Notes
" shall mean, collectively, (i) the $750,000,000 in aggregate principal amount
of the 2.250% Notes due 2017 and (ii)the $500,000,000 in aggregate principal
amount of the 4.125% Senior Notes due 2019.
"
Existing ClassLoans
" shall have the meaning assigned to such term in Section 9.08(f).
"
Existing CS Lettersof Credit
" shall mean those letters of credit or bank guarantees issued by Credit
Suisse AG, Cayman Islands Branch and outstandingas of the Closing Date and set
forth on
Schedule 1.01(F)
, which shall each be deemed to constitute a Letter of Credit issued
hereunderon the Closing Date;
provided
, that the Existing CS Letters of Credit shall not be extended or renewed by
Credit Suisse AG, CaymanIslands Branch on or prior to the maturity date of
such Existing CS Letters of Credit.
"
Existing Roll-OverLetters of Credit
" shall mean those letters of credit or bank guarantees issued and outstanding
as of the Closing Date and setforth on
Schedule 1.01(C)
, which shall each be deemed to constitute a Letter of Credit issued hereunder
on the Closing Date.
"
Extended RevolvingFacility Commitment
" shall have the meaning assigned to such term in Section 2.21(e).
"
Extended RevolvingLoan
" shall have the meaning assigned to such term in Section 2.21(e).
"
Extended Term Loan
"shall have the meaning assigned to such term in Section 2.21(e).
"
Extending Lender
"shall have the meaning assigned to such term in Section 2.21(e).
"
Extension
"shall have the meaning assigned to such term in Section 2.21(e).
"
Facility
"shall mean the respective facility and commitments utilized in making Loans
and credit extensions hereunder, it being understood that,(i) as of the
Sixteenth Incremental Assumption and Amendment Agreement Effective Date there
are two Facilities (
i.e.,
the TermB-1 Loans and the 2021 Revolving Facility Commitments and the
extensions of credit thereunder) and (ii) thereafter, the term "Facility"may
include any other Class of Commitments and the extensions of credit thereunder.
"
FATCA
"shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (or
any amended or successor version that is substantivelycomparable and not
materially more onerous to comply with), or any Treasury Regulations
promulgated thereunder or official administrativeinterpretations thereof and
any agreements entered into pursuant to Section 1471(b)(1) of the Code or any
fiscal or regulatory legislation,rules or practices adopted pursuant to any
intergovernmental agreement entered into in connection with the implementation
of such Sections ofthe Code.
37
"
Federal Funds EffectiveRate
" shall mean, for any day, the rate calculated by the Federal Reserve Bank of
New York based on such day's federalfunds transactions by depository
institutions (as determined in such manner as the Federal Reserve Bank of New
York shall set forth onits public website from time to time) and published on
the next succeeding Business Day by the Federal Reserve Bank of New York as
thefederal funds effective rate;
provided
that if the Federal Funds Effective Rate shall be less than zero, such rate
shall be deemedzero.
"
Fees
"shall mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank
Fees and the Administrative Agent Fees.
"
Fifteenth Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Fifteenth IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement No. 15 dated
as of the FifteenthIncremental Assumption and Amendment Agreement Effective
Date by and among Holdings, the Borrower, ADTSC, the Subsidiary Loan
Partiesparty thereto, the Lenders party thereto, the Administrative Agent and
the TLA Administrative Agent (as defined therein).
"
Fifteenth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Fifth Amended andRestated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Fifth AmendmentAgreement
" shall mean Amendment Agreement No. 5 dated as of the Fifth Amendment
Agreement Effective Date by and among Holdings,the Borrower, the Subsidiary
Loan Parties party thereto, the Lenders party thereto and the Administrative
Agent.
"
Fifth AmendmentAgreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Financial Covenant
"shall mean the covenant of the Borrower set forth in Section 6.11.
"
Financial Officer
"of any person shall mean the Chief Financial Officer or an equivalent
financial officer, principal accounting officer, Treasurer, AssistantTreasurer
or Controller of such person.
"
First Amended andRestated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
First IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement dated as of
the Closing Dateby and among Holdings, the Borrower, the Subsidiary Loan
Parties party thereto, the Lenders party thereto and the Administrative Agent.
"
First Lien/FirstLien Intercreditor Agreement
" shall mean (a) the First Lien/First Lien Intercreditor Agreement, dated as
of the Closing Date,by and between Barclays Bank PLC, as Collateral Agent for
the First-Priority Secured Parties (as defined therein), Barclays Bank PLC,as
Authorized Representative for the Credit Agreement Secured Parties (as defined
therein), and Wells Fargo Bank, National Association,as Authorized
Representative for the Initial Other First-Priority Secured Parties (as
defined therein) or (b) an intercreditor agreementsubstantially in the form of
Exhibit G hereto, or such
38
other customary form reasonably acceptableto the Administrative Agent and the
Borrower, in each case, as such document may be amended, restated,
supplemented or otherwise modifiedfrom time to time.
"
First Lien/SecondLien Intercreditor Agreement
" shall mean the First Lien/Second Lien Intercreditor Agreement, dated as of
the Original ClosingDate, by and between Barclays Bank PLC (as successor to
Credit Suisse AG, Cayman Islands Branch), as Applicable First Lien Agent (as
definedtherein), and Wells Fargo Bank, National Association, as Applicable
Second Lien Agent (as defined therein), or such other customary formreasonably
acceptable to the Administrative Agent and the Borrower, in each case, as such
document may be amended, restated, supplementedor otherwise modified from time
to time.
"
Flood Documentation
"shall mean, with respect to each Mortgaged Property located in the United
States of America or any territory thereof, (i) a completed"life-of-loan"
Federal Emergency Management Agency standard flood hazard determination (to
the extent a Mortgaged Propertyis located in a Special Flood Hazard Area,
together with a notice about Special Flood Hazard Area status and flood
disaster assistanceduly executed by the Borrower and the applicable Loan Party
relating thereto) and (ii) a copy of, or a certificate as to coverageunder,
and a declaration page relating to, the insurance policies required by Section
5.02(c) hereof and the applicable provisionsof the Security Documents, each of
which shall (A) be endorsed or otherwise amended to include a "standard" or
"New York"lender's loss payable or mortgagee endorsement (as applicable), (B)
name the Collateral Agent, on behalf of the Secured Parties,as additional
insured and loss payee/mortgagee, (C) identify the address of each property
located in a Special Flood Hazard Area,the applicable flood zone designation
and the flood insurance coverage and deductible relating thereto and (D) be
otherwise in formand substance reasonably satisfactory to the Collateral Agent.
"
Flood InsuranceLaws
" shall mean, collectively, (i) the National Flood Insurance Reform Act of
1994 (which comprehensively revised theNational Flood Insurance Act of 1968
and the Flood Disaster Protection Act of 1973) as now or hereafter in effect
or any successor statutethereto, (ii) the Flood Insurance Reform Act of 2004
as now or hereafter in effect or any successor statute thereto and (iii) the
Biggert-WatersFlood Insurance Reform Act of 2012 as now or hereafter in effect
or any successor statute thereto.
"
Floor
"shall mean a rate of interest equal to (i) with respect to any SOFR Term
Loan, zero and (ii) with respect to any SOFR Revolving Loan,zero.
"
Foreign Lender
"shall mean any Lender (a) that is not disregarded as separate from its owner
for U.S. federal income tax purposes and that is nota "United States person"
as defined by Section 7701(a)(30) of the Code or (b) that is disregarded as
separate fromits owner for U.S. federal income tax purposes and whose regarded
owner is not a "United States person" as defined in Section 7701(a)(30)of the
Code.
"
Foreign Subsidiary
"shall mean any Subsidiary that is incorporated or organized under the laws of
any jurisdiction other than the United States of America,any state thereof or
the District of Columbia.
"
Fourteenth Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Fourteenth IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement No. 14 dated
as of the FourteenthIncremental
39
Assumption and Amendment Agreement EffectiveDate by and among Holdings, the
Borrower, ADTSC, the Subsidiary Loan Parties party thereto, the Lenders party
thereto and the AdministrativeAgent.
"
Fourteenth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Fourth Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Fourth IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement No. 4 dated as
of the FourthIncremental Assumption and Amendment Agreement Effective Date by
and among Holdings, the Borrower, the Subsidiary Loan Parties party
thereto,the Lenders party thereto and the Administrative Agent.
"
Fourth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Fronting Exposure
"shall mean, at any time there is a Defaulting Lender, (a) with respect to any
Issuing Bank, such Defaulting Lender's Revolving FacilityPercentage of
Revolving L/C Exposure with respect to Letters of Credit issued by such
Issuing Bank other than such Revolving L/C Exposureas to which such Defaulting
Lender's participation obligation has been reallocated to other non-Defaulting
Lenders or Cash Collateralizedin accordance with the terms hereof and (b) with
respect to the Swingline Lender, such Defaulting Lender's Swingline Exposure
otherthan Swingline Loans as to which such Defaulting Lender's participation
obligation has been reallocated to other Lenders.
"
FSHCO
"shall mean any Subsidiary that owns no material assets other than the Equity
Interests of one or more Foreign Subsidiaries that are CFCsand/or of one or
more FSHCOs.
"
Fund
"shall mean, collectively, investment funds managed by Affiliates of Apollo
Global Management, Inc.
"
Fund Affiliate
"shall mean (i) each Affiliate of the Fund that is neither a "portfolio
company" (which means a company actively engagedin providing goods or services
to unaffiliated customers), whether or not controlled, nor a company
controlled by a "portfolio company"and (ii) any individual who is a partner or
employee of Apollo Management, L.P. or Apollo Management VIII, L.P.
"
GAAP
"shall mean generally accepted accounting principles in effect from time to
time in the United States of America, applied on a consistentbasis, subject to
the provisions of Section 1.02;
provided
, that any reference to the application of GAAP in Sections 3.13(b),3.20,
5.03, 5.07 and 6.02(e) to a Foreign Subsidiary (and not as a consolidated
Subsidiary of the Borrower) shall mean generally acceptedaccounting principles
in effect from time to time in the jurisdiction of organization of such
Foreign Subsidiary.
"
Governmental Authority
"shall mean any federal, state, local or foreign court or governmental or
supranational (including the European Union or the European CentralBank)
agency, authority, instrumentality or regulatory or legislative body.
"
Guarantee
"of or by any person (the "
guarantor
") shall mean (a) any obligation, contingent or otherwise, of the
guarantorguaranteeing or having the economic effect of guaranteeing any
Indebtedness or other monetary obligation payable or performable by
anotherperson (the "
primary obligor
") in any manner, whether directly or indirectly, and including any obligation
of the guarantor,direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such
40
Indebtedness or other obligation, (ii) topurchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of thepayment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of theprimary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (iv) entered into for the purposeof
assuring in any other manner the holders of such Indebtedness or other
obligation of the payment thereof or to protect such holdersagainst loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of the
guarantor securing any Indebtedness orother obligation (or any existing right,
contingent or otherwise, of the holder of Indebtedness or other obligation to
be secured by sucha Lien) of any other person, whether or not such
Indebtedness or other obligation is assumed by the guarantor;
provided
,
however
,that the term "Guarantee" shall not include endorsements of instruments for
deposit or collection in the ordinary course ofbusiness or customary and
reasonable indemnity obligations in effect on the Closing Date or entered into
in connection with any acquisitionor Disposition of assets permitted by this
Agreement (other than such obligations with respect to Indebtedness). The
amount of any Guaranteeshall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee is
madeor, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such person in goodfaith.
"
guarantor
"shall have the meaning assigned to such term in the definition of the term
"Guarantee."
"
Guarantors
"shall mean the Loan Parties (including, other than with respect to their own
respective Obligations, the Borrower and the Co-Borrowers).
"
Hazardous Materials
"shall mean all pollutants, contaminants, wastes, chemicals, materials,
substances and constituents, including, without limitation, explosiveor
radioactive substances or petroleum by products or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinatedbiphenyls, radon gas
or pesticides, fungicides, fertilizers or other agricultural chemicals, of any
nature subject to regulation or whichcan give rise to liability under any
Environmental Law.
"
Hedge Bank
"shall mean any person that, at the time it enters into a Hedging Agreement
(or on the Closing Date), is an Agent, an Arranger, a Lenderor an Affiliate of
any such person, in each case, in its capacity as a party to such Hedging
Agreement.
"
Hedging Agreement
"shall mean any agreement with respect to any swap, forward, future or
derivative transaction, or option or similar agreement involving,or settled by
reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financialor pricing indices or
measures of economic, financial or pricing risk or value, or credit spread
transaction, repurchase transaction,reserve repurchase transaction, securities
lending transaction, weather index transaction, spot contracts, fixed price
physical deliverycontracts, or any similar transaction or any combination of
these transactions, in each case of the foregoing, whether or not
exchangetraded;
provided
, that no phantom stock or similar plan providing for payments only on account
of services provided by currentor former directors, officers, employees or
consultants of Holdings, the Borrower or any of the Subsidiaries shall be a
Hedging Agreement.
"
Holdings
"shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.
"
Holdings Guaranteeand Pledge Agreement
" shall mean the Holdings Guarantee and Pledge Agreement (First Lien) dated as
of the Original Closing Dateas may be amended, restated, supplemented or
otherwise modified from time to time, between Holdings and the Collateral
Agent.
41
"
Immaterial Subsidiary
"shall mean any Subsidiary that (a) did not, as of the last day of the fiscal
quarter of the Borrower most recently ended for whichfinancial statements have
been (or were required to be) delivered pursuant to the First Incremental
Assumption and Amendment Agreement,Section 5.04(a) or Section 5.04(b), have
assets with a value in excess of 5% of the Consolidated Total Assets or
revenues representingin excess of 5% of total revenues of the Borrower and the
Subsidiaries on a consolidated basis as of such date, and (b) taken
togetherwith all Immaterial Subsidiaries as of such date, did not have assets
with a value in excess of 10% of Consolidated Total Assets or revenuesrepresenti
ng in excess of 10% of total revenues of the Borrower and the Subsidiaries on
a consolidated basis as of such date;
provided
,that the Borrower may elect in its sole discretion to exclude as an
Immaterial Subsidiary any Subsidiary that would otherwise meet thedefinition
thereof. Each Immaterial Subsidiary as of the Closing Date shall be set forth
in Schedule 1.01(B), and the Borrower shallupdate such Schedule from time to
time after the Closing Date as necessary to reflect all Immaterial
Subsidiaries at such time (theselection of Subsidiaries to be added to or
removed from such Schedule to be made as the Borrower may determine).
"
Increased Amount
"of any Indebtedness shall mean any increase in the amount of such
Indebtedness in connection with any accrual of interest, the accretionof
accreted value, the amortization of original issue discount, the payment of
interest in the form of additional Indebtedness or in theform of common stock
of the Borrower, the accretion of original issue discount or liquidation
preference and increases in the amount ofIndebtedness outstanding solely as a
result of fluctuations in the exchange rate of currencies.
"
Incremental Amount
"shall mean, at the time of the establishment of the commitments in respect of
the Indebtedness to be incurred utilizing this definition(or, at the option of
the Borrower, at the time of incurrence of such Indebtedness), the sum of:
(i) theexcess (if any) of (a) the greater of $970,000,000 and 0.35 times
the EBITDA calculated on a Pro Forma Basis for the then most recentlyended
Test Period
over
(b) the sum of (x) the aggregate amount of all Incremental Term Loan
Commitments and IncrementalRevolving Facility Commitments, in each case,
established after the Ninth Incremental Assumption and Amendment Agreement
Effective Dateand prior to such time pursuant to Section 2.21 utilizing this
clause (i) (other than Incremental Term Loan Commitments andIncremental
Revolving Facility Commitments in respect of Refinancing Term Loans (including
the 2024 Refinancing Term B-1 Loans), ExtendedTerm Loans, Extended Revolving
Facility Commitments (including the 2021 Extended Revolving Facility
Commitments) or Replacement RevolvingFacility Commitments, respectively) and
(y) the aggregate principal amount of Indebtedness outstanding pursuant to
Section 6.01(z)at such time that was incurred utilizing this clause (i) after
the Ninth Incremental Assumption and Amendment Agreement Effective Date;
plus
(ii) anyamounts so long as immediately after giving effect to the
establishment of the commitments in respect thereof utilizing this clause
(ii)(or, at the option of the Borrower, immediately after giving effect to the
incurrence of the Incremental Loans thereunder) (and assumingany Incremental
Revolving Facility Commitments are fully drawn and commitments for Incremental
Term Loans are fully drawn unless suchcommitments are otherwise terminated;
provided
that for purposes of testing any financial ratio hereunder such commitments
forIncremental Term Loans will be assumed as fully drawn until such
Incremental Term Loans are drawn or such commitments have otherwise
beenterminated) and the use of proceeds of the loans thereunder, (a) in the
case of Incremental Loans secured by Liens on the Collateralthat rank pari
passu with the Liens on the Collateral securing the Term B-1 Loans or 2021
Revolving Loans, the Net First Lien LeverageRatio on a Pro Forma Basis is not
greater than 3.20 to 1.00 and (b) in the case of Incremental Loans secured by
Liens on the Collateralthat rank junior to the Liens on the Collateral
securing the Term B-1 Loans or 2021 Revolving Loans, the Net Secured Leverage
Ratio
42
on a Pro Forma Basis is not greater than3.60 to 1.00;
provided
that (I) for purposes of this clause (ii), net cash proceeds of Incremental
Loans incurred atsuch time shall not be netted against the applicable amount
of Consolidated Debt for purposes of such calculation of the Net First
LienLeverage Ratio or the Net Secured Leverage Ratio at such time and (II)
with respect to any Incremental Loans incurred in connection withan
acquisition of assets or Equity Interests (including a Permitted Business
Acquisition) or any other Investment permitted hereunder,this clause (ii)
shall also be deemed to be satisfied if (A) in the case of Incremental Loans
described in clause (a) above, the Net FirstLien Leverage Ratio on a Pro Forma
Basis immediately after giving effect to such acquisition or Investment, the
incurrence of such Indebtednessand the use of proceeds thereof and any related
transactions is no greater than the Net First Lien Leverage Ratio in effect
immediatelyprior thereto or (B) in the case of Incremental Loans described in
clause (b) above, the Net Secured Leverage Ratio on a Pro Forma Basisimmediately
after giving effect to such acquisition or Investment, the incurrence of such
Indebtedness and the use of proceeds thereofand any related transactions is no
greater than the Net Secured Leverage Ratio in effect immediately prior
thereto;
plus
(iii) theaggregate amount of all voluntary prepayments of Term B-1 Loans
outstanding on the Ninth Incremental Assumption and Amendment AgreementEffective
Date and Revolving Facility Loans pursuant to Section 2.11(a) (and
accompanied by a reduction of Revolving Facility Commitmentspursuant to
Section 2.08(b) in the case of a prepayment of Revolving Facility Loans) made
after the Ninth Incremental Assumption and AmendmentAgreement Effective Date
(excluding, for the avoidance of doubt, the Existing Term B-1 Loan Prepayment
(as defined in the Ninth IncrementalAssumption and Amendment Agreement)) but
prior to such time except to the extent funded with the proceeds of long-term
Indebtedness (otherthan revolving Indebtedness).
"
Incremental AssumptionAgreement
" shall mean an Incremental Assumption Agreement in form and substance
reasonably satisfactory to the AdministrativeAgent, among the Borrower, any
applicable Co-Borrower, the Administrative Agent and, if applicable, one or
more Incremental Term Lendersand/or Incremental Revolving Facility Lenders.
"
Incremental Commitment
"shall mean an Incremental Term Loan Commitment or an Incremental Revolving
Facility Commitment.
"
Incremental Loan
"shall mean an Incremental Term Loan or an Incremental Revolving Loan.
"
Incremental RevolvingFacility Commitment
" shall mean the commitment of any Lender, established pursuant to Section
2.21, to make IncrementalRevolving Loans to the Borrower and/or a Co-Borrower.
"
Incremental RevolvingFacility Lender
" shall mean a Lender with an Incremental Revolving Facility Commitment or an
outstanding Incremental RevolvingLoan.
"
Incremental RevolvingLoan
" shall mean (i) Revolving Facility Loans made by one or more Revolving
Facility Lenders to the Borrower and/or anyCo-Borrower pursuant to an
Incremental Revolving Facility Commitment to make additional 2021 Revolving
Loans and (ii) to the extentpermitted by Section 2.21 and provided for in the
relevant Incremental Assumption Agreement, Other Revolving Loans (including
inthe form of Extended Revolving Loans or Replacement Revolving Loans, as
applicable) or (iii) any of the foregoing.
"
Incremental TermB-1 Lenders
" shall have the meaning assigned to such term in the Fifteenth Incremental
Assumption and Amendment Agreement.
43
"
Incremental TermB-1 Loans
" shall have the meaning assigned to such term in the Fifteenth Incremental
Assumption and Amendment Agreement.
"
Incremental TermLender
" shall mean a Lender with an Incremental Term Loan Commitment or an
outstanding Incremental Term Loan.
"
Incremental TermLoan Commitment
" shall mean the commitment of any Lender, established pursuant to Section
2.21, to make Incremental TermLoans to the Borrower and/or a Co-Borrower.
"
Incremental TermLoan Installment Date
" shall have, with respect to any Class of Incremental Term Loans established
pursuant to an IncrementalAssumption Agreement (other than the 2024
Refinancing Term B-1 Loans, the Incremental Term B-1 Loans and the May 2024
Incremental TermB-1 Loans), the meaning assigned to such term in Section
2.10(a)(ii).
"
Incremental TermLoans
" shall mean (i) Term Loans made by one or more Lenders to the Borrower and/or
any Co-Borrower pursuant to Section2.01(b), Section 2.01(c) or Section 2.01(e)
consisting of additional Term B-1 Loans and (ii) to the extent permitted by
Section 2.21and provided for in the relevant Incremental Assumption Agreement,
Other Term Loans (including in the form of Extended Term Loans or
RefinancingTerm Loans, as applicable) or (iii) any of the foregoing.
"
Indebtedness
"of any person shall mean, if and to the extent (other than with respect to
clause (i)) the same would constitute indebtedness ora liability on a balance
sheet prepared in accordance with GAAP, without duplication, (a) all
obligations of such person for borrowedmoney, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligationsof such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (d)
allobligations of such person issued or assumed as the deferred purchase price
of property or services (other than such obligations accruedin the ordinary
course), to the extent that the same would be required to be shown as a long
term liability on a balance sheet preparedin accordance with GAAP, (e) all
Capitalized Lease Obligations of such person, (f) all net payments that such
person would have to makein the event of an early termination, on the date
Indebtedness of such person is being determined, in respect of outstanding
Hedging Agreements,(g) the principal component of all obligations, contingent
or otherwise, of such person as an account party in respect of letters of
credit,(h) the principal component of all obligations of such person in
respect of bankers' acceptances, (i) all Guarantees by suchperson of
Indebtedness described in clauses (a) to (h) above and (j) the amount of all
obligations of such person with respect tothe redemption, repayment or other
repurchase of any Disqualified Stock (excluding accrued dividends that have
not increased the liquidationpreference of such Disqualified Stock);
provided
, that Indebtedness shall not include (A) trade and other ordinary-coursepayable
s, accrued expenses, and intercompany liabilities arising in the ordinary
course of business, (B) prepaid or deferred revenue,(C) purchase price
holdbacks arising in the ordinary course of business in respect of a portion
of the purchase prices of an assetto satisfy unperformed obligations of the
seller of such asset, (D) earn-out obligations until such obligations become a
liabilityon the balance sheet of such person in accordance with GAAP, (E)
obligations in respect of Third Party Funds or (F) in the case of theBorrower
and its Subsidiaries, (I) all intercompany Indebtedness having a term not
exceeding 364 days (inclusive of any roll-overor extensions of terms) and made
in the ordinary course of business and (II) intercompany liabilities in
connection with the cashmanagement, tax and accounting operations of the
Borrower and the Subsidiaries. The Indebtedness of any person shall include
the Indebtednessof any partnership in which such person is a general partner,
other than to the extent that the instrument or agreement evidencing
suchIndebtedness limits the liability of such person in respect thereof. To
the extent not otherwise included, Indebtedness shall includethe amount of any
Receivables Net Investment.
44
"
Indemnified Taxes
"shall mean all Taxes imposed on or with respect to or measured by any payment
by or on account of any obligation of any Loan Party hereunderor under any
other Loan Document other than (a) Excluded Taxes and (b) Other Taxes.
"
Indemnitee
"shall have the meaning assigned to such term in Section 9.05(b).
"
Ineligible Institution
"shall mean (i) the persons identified as "Disqualified Lenders" in writing to
the Closing Date Arrangers by the Borrower onor prior to February 14, 2016,
and (ii) the persons as may be identified in writing to the Administrative
Agent by the Borrower from timeto time thereafter (in the case of this clause
(ii)) in respect of bona fide business competitors of the Borrower (in the
good faith determinationof the Borrower), by delivery of a notice thereof to
the Administrative Agent setting forth such person or persons (or the person
or personspreviously identified to the Administrative Agent that are to be no
longer considered "Ineligible Institutions");
provided
,that no such updates to the list shall be deemed to retroactively disqualify
any parties that have previously acquired an assignment orparticipation
interest in respect of the Loans from continuing to hold or vote such
previously acquired assignments and participationson the terms set forth
herein for Lenders that are not Ineligible Institutions.
"
Information
"shall have the meaning assigned to such term in Section 3.14(a).
"
Information Memorandum
"shall mean the Confidential Information Memorandum, dated April 7, 2016, as
modified or supplemented prior to the Closing Date.
"
Intellectual Property
"shall have the meaning assigned to such term in the Collateral Agreement.
"
Intercreditor Agreement
"shall have the meaning assigned to such term in Section 8.11.
"
Interest CoverageRatio
" shall mean, on any date, the ratio of (a) EBITDA to (b) Interest Expense, in
each case, for the Test Period most recentlyended as of such date, all
determined on a consolidated basis in accordance with GAAP;
provided
that the Interest Coverage Ratioshall be determined for the relevant Test
Period on a Pro Forma Basis.
"
Interest ElectionRequest
" shall mean a request by the Borrower or the applicable Co-Borrower to
convert or continue a Borrowing in accordancewith Section 2.07 and
substantially in the form of Exhibit D or another form approved by the
Administrative Agent.
"
Interest Expense
"shall mean, with respect to any person for any period, the sum of (a) gross
interest expense of such person for such period on aconsolidated basis,
including the portion of any payments or accruals with respect to Capitalized
Lease Obligations allocable to interestexpense and excluding amortization of
deferred financing fees and original issue discount, debt issuance costs,
commissions, fees andexpenses, expensing of any bridge, commitment or other
financing fees and non-cash interest expense attributable to movement in mark
tomarket of obligations in respect of Hedging Agreements or other derivatives
(in each case permitted hereunder) under GAAP, (b) capitalizedinterest of such
person, and (c) commissions, discounts, yield and other fees and charges
incurred in connection with any Permitted SecuritizationFinancing which are
payable to any person other than the Borrower or a Subsidiary Loan Party,
minus interest income for such period. Forpurposes of the foregoing, gross
interest expense shall be determined after giving effect to any net payments
made or received and costsincurred by the Borrower and the Subsidiaries with
respect to Hedging Agreements, and interest on a Capitalized Lease Obligation
shallbe deemed to accrue at an interest rate reasonably determined by the
Borrower to be the rate of interest implicit in such CapitalizedLease
Obligation in accordance with GAAP.
45
"
Interest PaymentDate
" shall mean, (a) with respect to any SOFR Loan, (i) the last day of the
Interest Period applicable to the Borrowingof which such Loan is a part, (ii)
in the case of a SOFR Borrowing with an Interest Period of more than three
months' duration,each day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration been applicableto such
Borrowing and (iii) in addition, the date of any refinancing or conversion of
such Borrowing with or to a Borrowing of adifferent Type, (b) with respect to
any ABR Loan, the last Business Day of each calendar quarter and (c) with
respect to any SwinglineLoan, the day that such Swingline Loan is required to
be repaid pursuant to Section 2.09(a).
"
Interest Period
"shall mean, as to any SOFR Borrowing, the period commencing on the date of
such Borrowing or on the last day of the immediately precedingInterest Period
applicable to such Borrowing, as applicable, and ending on the numerically
corresponding day (or, if there is no numericallycorresponding day, on the
last day) in the calendar month that is 1, 3 or 6 months thereafter, as the
Borrower or the applicable Co-Borrowermay elect;
provided
,
however
, that (i) if any Interest Period would end on a day other than a Business
Day, such InterestPeriod shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendarmonth,
in which case such Interest Period shall end on the next preceding Business
Day and (ii) no tenor that has been removed from thisdefinition pursuant to
Section 2.14(e) shall be available for specification in such Borrowing
Request. Interest shall accrue from andincluding the first day of an Interest
Period to but excluding the last day of such Interest Period;
provided
,
further
,that notwithstanding anything to the contrary contained in this Agreement,
(x) the initial Interest Period with respect to the 2024 RefinancingTerm B-1
Loans made on the Fourteenth Incremental Assumption and Amendment Agreement
Effective Date shall be the period commencing onthe Fourteenth Incremental
Assumption and Amendment Agreement Effective Date and ending on July 5, 2024,
(y) the initial Interest Periodwith respect to the Incremental Term B-1 Loans
deemed made on the Fifteenth Incremental Assumption and Amendment Agreement
Effective Dateshall be the period commencing on the Fifteenth Incremental
Assumption and Amendment Agreement Effective Date and ending on July 5,
2024and (z) the initial Interest Period with respect to the May 2024
Incremental Term B-1 Loans made on the Sixteenth Incremental Assumptionand
Amendment Agreement Effective Date shall be the period commencing on the
Sixteenth Incremental Assumption and Amendment AgreementEffective Date and
ending on July 5, 2024.
"
Investment
"shall have the meaning assigned to such term in Section 6.04.
"
Issuing Bank Fees
"shall have the meaning assigned to such term in Section 2.12(b).
"
Issuing Banks
"shall mean, as the context may require (w) with respect to the 2021 Revolving
Facility Commitment, (i) Barclays Bank PLC, with respectto up to $40,000,000.00
of Letters of Credit, (ii) Citibank, N.A., with respect to up to $22,500,000.00
of Letters of Credit, (iii) DeutscheBank AG New York Branch, with respect to
up to $35,246,500.00 of Letters of Credit, (iv) Royal Bank of Canada, with
respect to up to $25,378,500.00of Letters of Credit and (v) Goldman Sachs Bank
USA, with respect to up to $1,875,000.00 of Letters of Credit;
provided
that eachIssuing Bank may, in its sole discretion, issue a greater amount of
Letters of Credit than the amounts set forth above (subject to theLetter of
Credit Sublimit), (x) for purposes of the Existing Roll-Over Letters of
Credit, the Issuing Bank set forth on Schedule 1.01(C),(y) for purposes of the
Existing CS Letters of Credit set forth on Schedule 1.01(F), Credit Suisse AG,
Cayman Islands Branch and (z) eachother Issuing Bank designated pursuant to
Section 2.05(l), in each case in its capacity as an issuer of Letters of
Credit hereunder, andits successors in such capacity;
provided
that the amount set forth in clause (v)(i) herein shall include the total
amount of theExisting CS Letters of Credit. An Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliatesof such Issuing Bank, in which case the term "Issuing Banks" shall
include any such Affiliate with respect to Letters of Creditissued by such
Affiliate.
46
"
January 2017 EngagementLetter
" shall mean that certain Engagement Letter dated as of January 30, 2017 by
and among the Borrower, Barclays Bank PLC,Deutsche Bank Securities Inc., Royal
Bank of Canada, Citigroup Global Markets Inc. and Apollo Global Securities,
LLC.
"
January 2021 EngagementLetter
" shall mean that certain Engagement Letter, dated as of January 19, 2021, by
and among the Borrower, Barclays Bank PLC,Deutsche Bank Securities Inc.,
Citigroup Global Markets Inc., Mizuho Bank, Ltd., Royal Bank of Canada, RBC
Capital Markets, LLC and ApolloGlobal Securities, LLC.
"
Joint Bookrunners
"shall mean, collectively, Barclays Bank PLC, Deutsche Bank Securities Inc.,
Mizuho Bank, Ltd., RBC Capital Markets, LLC, Citigroup GlobalMarkets Inc.,
Morgan Stanley Senior Funding, Inc., MUFG Bank, Ltd., BNP Paribas Securities
Corp. and Citizens Bank, N.A.
"
Judgment Currency
"shall have the meaning assigned to such term in Section 9.19.
"
June 2016 EngagementLetter
" shall mean that certain Engagement Letter dated as of June 7, 2016 by and
among the Borrower, Barclays Bank PLC, DeutscheBank AG New York Branch, Royal
Bank of Canada and Apollo Global Securities, LLC.
"
June 2017 EngagementLetter
" shall mean that certain Engagement Letter dated as of June 9, 2017 by and
among the Borrower, Barclays Bank PLC, DeutscheBank Securities Inc., Royal
Bank of Canada, Citigroup Global Markets Inc. and Apollo Global Securities,
LLC.
"
Junior Financing
"shall mean any Indebtedness (other than intercompany Indebtedness) that is
subordinated in right of payment to the Loan Obligations.
"
Junior Liens
"shall mean Liens on the Collateral that are junior to the Liens thereon
securing the Term B-1 Loans (and other Loan Obligations that arepari passu
with the Term B-1 Loans) pursuant to a Permitted Junior Intercreditor
Agreement (it being understood that Junior Liens arenot required to be pari
passu with other Junior Liens, and that Indebtedness secured by Junior Liens
may have Liens that are senior inpriority to, or pari passu with, or junior in
priority to, other Liens constituting Junior Liens).
"
L/C Disbursement
"shall mean a payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit.
"
L/C ParticipationFee
" shall have the meaning assigned to such term in Section 2.12(b).
"
Latest MaturityDate
" shall mean, at any date of determination, the latest of the latest Revolving
Facility Maturity Date and the latest TermFacility Maturity Date, in each case
then in effect on such date of determination.
"
Lender
"shall mean each Revolving Facility Lender listed on
Schedule 2.01
to this Agreement, each Lender of Term B-1 Loans under the FourteenthIncremental
Assumption and Amendment Agreement, each Incremental Term B-1 Lender, each
May 2024 Incremental Term B-1 Lender (in each case,other than any such person
that has ceased to be a party hereto pursuant to an Assignment and Acceptance
in accordance with Section 9.04),as well as any person that becomes a "Lender"
hereunder pursuant to Section 9.04 or Section 2.21. Unless the contextclearly
indicates otherwise, the term "Lenders" shall include any Swingline Lender.
"
Lending Office
"shall mean, as to any Lender, the applicable branch, office or Affiliate of
such Lender designated by such Lender to make Loans.
47
"
Letter of Credit
"shall mean any letter of credit issued pursuant to Section 2.05, including
any Alternate Currency Letter of Credit. Each ExistingRoll-Over Letter of
Credit and Existing CS Letter of Credit shall be deemed to constitute a Letter
of Credit issued hereunder on the ClosingDate for all purposes of the Loan
Documents.
"
Letter of CreditCommitment
" shall mean, with respect to each Issuing Bank, the commitment of such
Issuing Bank to issue Letters of Credit pursuantto Section 2.05.
"
Letter of CreditSublimit
" shall mean the aggregate Letter of Credit Commitments of the Issuing Banks,
in an amount not to exceed (a) with respectto the 2021 Revolving Facility
Commitments, $125,000,000 and (b) with respect to any other Classes of
Revolving Facility Commitments,the letter of credit sublimit specified
therefor in the applicable Incremental Assumption Agreement.
"
Lien
"shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, charge, security interest orsimilar monetary
encumbrance in or on such asset and (b) the interest of a vendor or a lessor
under any conditional sale agreement,capital lease or title retention
agreement (or any financing lease having substantially the same economic
effect as any of the foregoing)relating to such asset;
provided
, that in no event shall an operating lease or an agreement to sell be deemed
to constitute a Lien.
"
Loan Documents
"shall mean (i) this Agreement, (ii) the Security Documents, (iii) each
Incremental Assumption Agreement (including theFirst Incremental Assumption
and Amendment Agreement, the Second Incremental Assumption and Amendment
Agreement, the Fourth IncrementalAssumption and Amendment Agreement, the Sixth
Incremental Assumption and Amendment Agreement, the Seventh Incremental
Assumption and AmendmentAgreement, the Ninth Incremental Assumption and
Amendment Agreement, the Tenth Incremental Assumption and Amendment Agreement,
the EleventhIncremental Assumption and Amendment Agreement, the Twelfth
Amendment Agreement, the Thirteenth Incremental Assumption and Amendment
Agreement,the Fourteenth Incremental Assumption and Amendment Agreement, the
Fifteenth Incremental Assumption and Amendment Agreement and the SixteenthIncrem
ental Assumption and Amendment Agreement), (iv) the First Lien/Second Lien
Intercreditor Agreement, (v) the First Lien/First LienIntercreditor Agreement,
(vi) any other Intercreditor Agreement, (vii) any Note issued under Section
2.09(e), (viii) the Lettersof Credit, (ix) the Successor First Lien Agent
Agreement, (x) solely for the purposes of Section 7.01 hereof, the 2015 Fee
Letterand the 2016 Fee Letter, (xi) the Third Amendment Agreement, (xii) the
Fifth Amendment Agreement and (xiii) the Eighth Amendment Agreement.
"
Loan Obligations
"shall mean (a) the due and punctual payment by the Borrower and the
Co-Borrowers of (i) the unpaid principal of and interest(including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless ofwhether allowed or allowable in such
proceeding) on the Loans made to the Borrower or any Co-Borrower under this
Agreement, when and asdue, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required tobe
made by the Borrower or any Co-Borrower under this Agreement in respect of any
Letter of Credit, when and as due, including paymentsin respect of
reimbursement of disbursements, interest thereon (including interest accruing
during the pendency of any bankruptcy, insolvency,receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding) and obligations to provide CashCollateral and (iii) all other
monetary obligations of the Borrower or any Co-Borrower owed under or pursuant
to this Agreement andeach other Loan Document, including obligations to pay
fees, expense reimbursement obligations and indemnification obligations,
whetherprimary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,insolvency,
receivership or other similar
48
proceeding, regardless of whether allowed orallowable in such proceeding), and
(b) the due and punctual payment of all obligations of each other Loan Party
under or pursuantto each of the Loan Documents.
"
Loan Parties
"shall mean Holdings (prior to a Qualified IPO of the Borrower), the Borrower
and the Subsidiary Loan Parties.
"
Loans
"shall mean the Term Loans, the Revolving Facility Loans and the Swingline
Loans.
"
Local Time
"shall mean New York City time (daylight or standard, as applicable);
provided
that, with respect to any Alternate CurrencyLoan, "Local Time" shall mean the
local time of the applicable Lending Office.
"
Majority Lenders
"of any Facility shall mean, at any time, Lenders under such Facility having
Loans and unused Commitments representing more than 50% ofthe sum of all Loans
outstanding under such Facility and unused Commitments under such Facility at
such time (subject to the last paragraphof Section 9.08(b)).
"
Management Group
"shall mean the group consisting of the directors, executive officers and
other management personnel of the Borrower, Holdings or any ParentEntity, as
the case may be, on the Closing Date after giving effect to the ADT
Transactions together with (a) any new directors whoseelection by such boards
of directors or whose nomination for election by the shareholders of the
Borrower, Holdings or any Parent Entity,as the case may be, was approved by a
vote of a majority of the directors of the Borrower, Holdings or any Parent
Entity, as the casemay be, then still in office who were either directors on
the Closing Date after giving effect to the ADT Transactions or whose
electionor nomination was previously so approved and (b) executive officers
and other management personnel of the Borrower, Holdings or anyParent Entity,
as the case may be, hired at a time when the directors on the Closing Date
after giving effect to the ADT Transactionstogether with the directors so
approved constituted a majority of the directors of the Borrower or Holdings,
as the case may be.
"
March 2019 EngagementLetter
" shall mean that certain Engagement Letter dated as of March 8, 2019, by and
among the Borrower, Barclays Bank PLC andApollo Global Securities, LLC.
"
Margin Stock
"shall have the meaning assigned to such term in Regulation U.
"
Material AdverseEffect
" shall mean a material adverse effect on the business, property, operations
or financial condition of the Borrower andits Subsidiaries, taken as a whole,
or the validity or enforceability of any of the Loan Documents or the rights
and remedies of the AdministrativeAgent and the Lenders thereunder.
"
Material Indebtedness
"shall mean Indebtedness (other than Loans and Letters of Credit) of any one
or more of the Borrower or any Subsidiary in an aggregateprincipal amount
exceeding $84,000,000;
provided
that in no event shall any Permitted Securitization Financing be considered
MaterialIndebtedness.
"
Material Real Property
"shall mean any parcel or parcels of Real Property located in the United
States now or hereafter owned in fee by the Borrower or any SubsidiaryLoan
Party and having a fair market value (on a per-property basis) of at least
$50,000,000 as of (x) the Fourteenth IncrementalAssumption and Amendment
Agreement Effective Date, for Real Property now owned, (y) the date of
acquisition, for Real Property acquiredafter the Fourteenth Incremental
Assumption and Amendment Agreement Effective Date, in each case as determined
by the Borrower in goodfaith or (z) the date of acquisition or formation, for
any additional direct or indirect Subsidiary of the Borrower that is acquired
or
49
formed after the Fourteenth Incremental Assumptionand Amendment Agreement
Effective Date and owns any Real Property in fee;
provided
, that "Material Real Property" shallnot include (i) any Real Property in
respect of which the Borrower or a Subsidiary Loan Party does not own the land
in fee simple or (ii)any Real Property which the Borrower or a Subsidiary Loan
Party leases to a third party.
"
Material Subsidiary
"shall mean any Subsidiary other than an Immaterial Subsidiary.
"
Maximum Rate
"shall have the meaning assigned to such term in Section 9.09.
"
May 2024 EngagementLetter
" shall mean that certain Engagement Letter, dated as of May 22, 2024, by and
between the Borrower and Deutsche Bank SecuritiesInc., as it may be amended,
restated, amended and restated, supplemented or otherwise modified from time
to time.
"
May 2024 IncrementalTerm B-1 Lenders
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
May 2024 IncrementalTerm B-1 Loan Commitment
" shall have the meaning assigned to such term in the Sixteenth Incremental
Assumption and AmendmentAgreement.
"
May 2024 IncrementalTerm B-1 Loans
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Merger
"shall have the meaning assigned to such term in the definition of "Merger
Agreement."
"
Merger Agreement
"shall mean that certain Agreement and Plan of Merger, dated as of February
14, 2016, by and among the Target, the Borrower, Merger Sub,Prime Security
Services Parent, Inc., a Delaware corporation, and Prime Security Services
TopCo Parent, L.P., a Delaware limited partnership,pursuant to which Merger
Sub merged with and into the Target, with the Target surviving as an indirect
wholly owned subsidiary of theBorrower (the "
Merger
").
"
Merger Sub
"shall mean Prime Security One MS, Inc., a Delaware corporation.
"
Minimum L/C CollateralAmount
" shall mean, at any time, in connection with any Letter of Credit, (i) with
respect to Cash Collateral consistingof cash or deposit account balances, an
amount equal to 103% of the Revolving L/C Exposure with respect to such Letter
of Credit at suchtime and (ii) otherwise, an amount sufficient to provide
credit support with respect to such Revolving L/C Exposure as determinedby the
Administrative Agent and the Issuing Banks in their sole discretion.
"
Moody's
"shall mean Moody's Investors Service, Inc.
"
Mortgaged Properties
"shall mean the Material Real Properties owned in fee by the Borrower or any
Subsidiary Loan Party that are identified as such on Schedule1.01(E) (the "
Closing Date Mortgaged Properties
"), except to the extent otherwise identified and deemed Excluded Property,and
each additional Material Real Property encumbered by a Mortgage pursuant to
Section 5.10.
"
Mortgages
"shall mean, collectively, the mortgages, trust deeds, deeds of trust, deeds
to secure debt, assignments of leases and rents, and othersecurity documents
(including amendments to any of the foregoing) delivered with respect to
Mortgaged Properties, each substantially inthe form of Exhibit E (with such
changes as are reasonably consented to by the Collateral Agent to account for
local law matters)or in such other form as is reasonably satisfactory to the
Collateral Agent and the Borrower, in each case, as amended, supplemented
orotherwise modified from time to time.
50
"
Multiemployer Plan
"shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to
which the Borrower, Holdings or any Subsidiary or anyERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o)
of Code Section 414) is makingor accruing an obligation to make contributions,
or has within any of the preceding six plan years made or accrued an
obligation to makecontributions.
"
Net First LienLeverage Ratio
" shall mean on any date, the ratio of (A) (i) the sum of, without
duplication, (x) the aggregateprincipal amount of any Consolidated Debt
consisting of Loan Obligations outstanding as of the last day of the Test
Period most recentlyended as of such date (other than Excluded Transaction
Debt and other than Loan Obligations secured only by Junior Liens), (y)
theaggregate principal amount of any other Consolidated Debt of the Borrower
and its Subsidiaries as of the last day of such Test Periodthat is then
secured by Liens that are Other First Liens (other than Excluded Transaction
Debt) and (z) Indebtedness of the type describedin clause (e) of the
definition of "Indebtedness"
less
(ii) without duplication, the Unrestricted Cash and unrestrictedPermitted
Investments of the Borrower and its Subsidiaries as of the last day of such
Test Period, to (B) EBITDA for such Test Period,all determined on a
consolidated basis in accordance with GAAP;
provided
, that the Net First Lien Leverage Ratio shall be determinedfor the relevant
Test Period on a Pro Forma Basis.
"
Net Income
"shall mean, with respect to any person, the net income (loss) of such person,
determined in accordance with GAAP and before any reductionin respect of
preferred stock dividends.
"
Net Proceeds
"shall mean:
(a) 100%of the cash proceeds actually received by the Borrower or any
Subsidiary Loan Party (including any cash payments received by way of
deferredpayment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise and including casualtyinsuranc
e settlements and condemnation awards, but only as and when received) from any
Asset Sale under Section 6.05(g), net of (i) attorneys'fees, accountants'
fees, investment banking fees, survey costs, title insurance premiums, and
related search and recording charges,transfer taxes, deed or mortgage
recording taxes, required debt payments and required payments of other
obligations relating to the applicableasset to the extent such debt or
obligations are secured by a Lien permitted hereunder (other than pursuant to
the Loan Documents andthe Second Lien Loan Documents) on such asset, other
customary expenses and brokerage, consultant and other customary fees actually
incurredin connection therewith, (ii) Taxes paid or payable (in the good faith
determination of the Borrower) as a result thereof, and (iii) theamount of any
reasonable reserve established in accordance with GAAP against any adjustment
to the sale price or any liabilities (otherthan any taxes deducted pursuant to
clause (i) or (ii) above) (x) related to any of the applicable assets and (y)
retainedby the Borrower or any of the Subsidiaries including, without
limitation, pension and other post-employment benefit liabilities and
liabilitiesrelated to environmental matters or against any indemnification
obligations (however, the amount of any subsequent reduction of such
reserve(other than in connection with a payment in respect of any such
liability) shall be deemed to be cash proceeds of such Asset Sale occurringon
the date of such reduction);
provided
, that, if Holdings or the Borrower shall deliver a certificate of a
Responsible Officerof Holdings or the Borrower to the Administrative Agent
promptly following receipt of any such proceeds setting forth Holdings'or the
Borrower's intention to use any portion of such proceeds, within 12 months of
such receipt, to acquire, maintain, develop,construct, improve, upgrade or
repair assets useful in the business of the Borrower and the Subsidiaries or
to make Permitted BusinessAcquisitions and other Investments permitted
hereunder (excluding Permitted Investments or intercompany Investments in
Subsidiaries) orto reimburse the cost of any of the foregoing incurred on or
after the date on which the Asset Sale giving rise to such proceeds was
contractuallycommitted, such portion of such proceeds shall not constitute Net
Proceeds except to
51
the extent not, within 12 months of suchreceipt, so used or contractually
committed to be so used (it being understood that if any portion of such
proceeds are not so used withinsuch 12 month period but within such 12 month
period are contractually committed to be used, then such remaining portion if
not so usedwithin six months following the end of such 12 month period shall
constitute Net Proceeds as of such date without giving effect tothis proviso) (
provided
that pending the final application of any such proceeds, the Borrower or any
Subsidiary may temporarilyreduce Indebtedness under a revolving credit
facility or otherwise use such proceeds in any manner not prohibited by this
Agreement);
provided
,
further
, that (x) no net cash proceeds calculated in accordance with the foregoing
realized in a single transactionor series of related transactions shall
constitute Net Proceeds unless such net cash proceeds shall exceed $24,000,000
(and thereafteronly net cash proceeds in excess of such amount shall
constitute Net Proceeds) and (y) no net cash proceeds calculated in
accordancewith the foregoing shall constitute Net Proceeds in any fiscal year
until the aggregate amount of all such net cash proceeds otherwiseconstituting
Net Proceeds pursuant to the foregoing clause (x) in such fiscal year shall
exceed $84,000,000 (and thereafter only net cashproceeds in excess of such
amount shall constitute Net Proceeds); and
(b) 100%of the cash proceeds from the incurrence, issuance or sale by
the Borrower or any Subsidiary Loan Party of any Indebtedness (other
thanExcluded Indebtedness), net of all taxes and fees (including investment
banking fees), commissions, costs and other expenses, in eachcase incurred in
connection with such issuance or sale.
"
Net Secured LeverageRatio
" shall mean, on any date, the ratio of (A) (i) the sum of, without
duplication, (x) the aggregate principalamount of any Consolidated Debt
consisting of Loan Obligations outstanding as of the last day of the Test
Period most recently ended asof such date (other than Excluded Transaction
Debt), (y) the aggregate principal amount of any other Consolidated Debt of
the Borrowerand its Subsidiaries as of the last day of such Test Period that
is then secured by Liens (other than Excluded Transaction Debt) and
(z)Indebtedness of the type described in clause (e) of the definition of
"Indebtedness"
less
(ii) without duplication,the Unrestricted Cash and unrestricted Permitted
Investments of the Borrower and its Subsidiaries as of the last day of such
Test Period,to (B) EBITDA for such Test Period, all determined on a
consolidated basis in accordance with GAAP;
provided
, that the NetSecured Leverage Ratio shall be determined for the relevant Test
Period on a Pro Forma Basis.
"
Net Total LeverageRatio
" shall mean on any date, the ratio of (A) (i) the sum of, without
duplication, (x) the aggregate principalamount of any Consolidated Debt
consisting of Loan Obligations outstanding as of the last day of the Test
Period most recently ended asof such date (other than Excluded Transaction
Debt) and (y) the aggregate principal amount of any other Consolidated Debt of
theBorrower and its Subsidiaries as of the last day of such Test Period (other
than Excluded Transaction Debt)
less
(ii) withoutduplication, the Unrestricted Cash and unrestricted Permitted
Investments of the Borrower and its Subsidiaries as of the last day of
suchTest Period, to (B) EBITDA for such Test Period, all determined on a
consolidated basis in accordance with GAAP;
provided
,that the Net Total Leverage Ratio shall be determined for the relevant Test
Period on a Pro Forma Basis.
"
New Class Loans
"shall have the meaning assigned to such term in Section 9.08(f).
"
New Project
"shall mean (x) each branch which is either a new branch or an expansion,
relocation, remodeling or substantial modernization of anexisting branch owned
by the Borrower or the Subsidiaries which in fact commences operations and (y)
each creation (in one or a seriesof related transactions) of a business unit
to the extent such business unit commences operations or each expansion (in
one or a seriesof related transactions) of business into a new market.
52
"
Ninth Amended and RestatedCredit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Ninth IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement dated as of
September 23,2019 and effective as of the Ninth Incremental Assumption and
Amendment Agreement Effective Date, by and among Holdings, the Borrower,the
Subsidiary Loan Parties party thereto, the Lenders party thereto and the
Administrative Agent.
"
Ninth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Non-ConsentingLender
" shall have the meaning assigned to such term in Section 2.19(c).
"
Non-DefaultingLender
" shall mean, at any time, each Lender that is not a Defaulting Lender at such
time.
"
Note
"shall have the meaning assigned to such term in Section 2.09(e).
"
November 2018 AdditionalFee Letter
" shall mean that certain Fee Letter dated as of November 9, 2018 by and among
the Borrower, Barclays Bank PLC, CitigroupGlobal Markets Inc., Deutsche Bank
AG New York Branch, Deutsche Bank Securities Inc., Royal Bank of Canada,
Citizens Bank, N.A., CreditSuisse AG, Cayman Islands Branch, Goldman Sachs
Bank USA, Morgan Stanley Senior Funding, Inc., ING Capital LLC and Apollo
Global Securities,LLC.
"
Obligations
"shall mean, collectively, (a) the Loan Obligations, (b) obligations in
respect of any Secured Cash Management Agreement and(c) obligations in respect
of any Secured Hedge Agreement.
"
October 2018 FeeLetter
" shall mean that certain Fee Letter dated as of October 24, 2018 by and among
the Borrower, Barclays Bank PLC, CitigroupGlobal Markets Inc., Deutsche Bank
AG New York Branch, Deutsche Bank Securities Inc., Royal Bank of Canada,
Citizens Bank, N.A., CreditSuisse AG, Cayman Islands Branch, Goldman Sachs
Bank USA, Morgan Stanley Senior Funding, Inc. and ING Capital LLC (as
supplemented ormodified on or prior to the Seventh Incremental Assumption and
Amendment Agreement Effective Date).
"
OFAC
"shall have the meaning provided in Section 3.25(b).
"
Original ClosingDate
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Original CreditAgreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Other First LienDebt
" shall mean obligations secured by Other First Liens.
"
Other First Liens
"shall mean Liens other than Liens that rank junior in right of security to
the Term B-1 Loans;
provided
that to the extent anyOther First Lien Debt is secured by a Lien on the
Collateral, such Other First Liens shall be subject to a Permitted Pari Passu
IntercreditorAgreement.
"
Other RevolvingFacility Commitments
" shall mean Incremental Revolving Facility Commitments to make Other
Revolving Loans.
53
"
Other RevolvingLoans
" shall have the meaning assigned to such term in Section 2.21(a).
"
Other Taxes
"shall mean any and all present or future stamp or documentary Taxes or any
other excise, transfer, sales, property, intangible, mortgagerecording or
similar Taxes arising from any payment made hereunder or under any other Loan
Document or from the execution, registration,delivery or enforcement of,
consummation or administration of, from the receipt or perfection of security
interest under, or otherwisewith respect to, the Loan Documents (but excluding
any Excluded Taxes).
"
Other Term Loans
"shall have the meaning assigned to such term in Section 2.21(a) (including in
the form of Extended Term Loans or Refinancing TermLoans, as applicable).
"
Parent Entity
"shall mean any direct or indirect parent of the Borrower.
"
Pari Term Loans
"shall have the meaning assigned to such term in Section 6.02.
"
Pari Yield Differential
"shall have the meaning assigned to such term in Section 6.02.
"
Participant
"shall have the meaning assigned to such term in Section 9.04(d)(i).
"
Participant Register
"shall have the meaning assigned to such term in Section 9.04(d)(ii).
"
Participating MemberState
" shall mean each state so described in any EMU Legislation.
"
PBGC
"shall mean the Pension Benefit Guaranty Corporation referred to and defined
in ERISA.
"
Perfection Certificate
"shall mean the Perfection Certificate with respect to the Borrower and the
other Loan Parties in a form reasonably satisfactory to theAdministrative
Agent, as the same may be supplemented from time to time to the extent
required by Section 5.04(f).
"
Periodic Term SOFRDetermination Day
" has the meaning specified in the definition of "Term SOFR".
"
Permitted BusinessAcquisition
" shall mean any acquisition of all or substantially all the assets of, or all
or substantially all the Equity Interests(other than directors' qualifying
shares) not previously held by the Borrower and its Subsidiaries in, or
merger, consolidationor amalgamation with, a person or division or line of
business of a person (or any subsequent investment made in a person or
divisionor line of business previously acquired in a Permitted Business
Acquisition), if immediately after giving effect thereto: (i) noEvent of
Default under clause (b), (c), (h) or (i) of Section 7.01 shall have occurred
and be continuing or would result therefrom,
provided
,
however
, that with respect to a proposed acquisition pursuant to an executed
acquisition agreement, at the option of the Borrower,the determination of
whether such an Event of Default shall exist shall be made solely at the time
of the execution of the acquisitionagreement related to such Permitted
Business Acquisition; (ii) all transactions related thereto shall be
consummated in accordancewith applicable laws; (iii) with respect to any such
acquisition or investment with cash consideration in excess of $50,000,000,
the Borrowershall be in Pro Forma Compliance immediately after giving effect
to such acquisition or investment and any related transaction; (iv)
anyacquired or newly formed Subsidiary shall not be liable for any
Indebtedness except for Indebtedness permitted by Section 6.01; (v) tothe
extent required by Section 5.10, any person acquired in such acquisition, if
acquired by the Borrower or a Domestic Subsidiary,shall be merged into the
Borrower or a Subsidiary Loan Party or become upon consummation of such
acquisition a Subsidiary Loan Party;and (vi) the aggregate cash consideration
in respect of such acquisitions and investments in assets that are not owned
by the Borroweror Subsidiary Loan Parties or in Equity Interests of persons
that are not Subsidiary Loan
54
Parties or do not become Subsidiary Loan Parties,in each case upon
consummation of such acquisition, shall not exceed the greater of (x)
$150,000,000 and (y) 0.05 times theEBITDA calculated on a Pro Forma Basis for
the then most recently ended Test Period (excluding for purposes of the
calculation in thisclause (vi), (A) any such assets or Equity Interests that
are no longer owned by the Borrower or any of its Subsidiaries and (B)
acquisitionsand investments made at a time when, immediately after giving
effect thereto, the Net Total Leverage Ratio on a Pro Forma Basis wouldnot
exceed 3.15 to 1.00, which acquisitions and investments shall be permitted
under this clause (vi) without regard to such calculation).
"
Permitted CureSecurities
" shall mean any equity securities of the Borrower, Holdings or any Parent
Entity issued pursuant to the Cure Rightother than Disqualified Stock.
"
Permitted HolderGroup
" shall have the meaning assigned to such term in the definition of "Permitted
Holders."
"
Permitted Holders
"shall mean (i) the Sponsors, (ii) the Management Group, (iii) any person that
has no material assets other than the Equity Interestsof the Borrower,
Holdings or any Parent Entity and that, directly or indirectly, holds or
acquires beneficial ownership of 100% on a fullydiluted basis of the voting
Equity Interests of the Borrower, and of which no other person or "group"
(within the meaningof Rules 13d-3 and 13d-5 under the Exchange Act as in
effect on the Closing Date), other than any of the other Permitted Holders
specifiedin clauses (i) and (ii) and this clause (iii), beneficially owns more
than the greater of 35% and the percentage beneficially owned bythe Permitted
Holders specified in clauses (i) and (ii) and this clause (iii) on a fully
diluted basis of the voting Equity Intereststhereof and (iv) any "group"
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in
effect on theClosing Date) the members of which include any of the other
Permitted Holders specified in clauses (i), (ii) and (iii) and that,directly
or indirectly, hold or acquire beneficial ownership of the voting Equity
Interests of the Borrower (a "
Permitted HolderGroup
"), so long as (1) each member of the Permitted Holder Group has voting rights
proportional to the percentage of ownershipinterests held or acquired by such
member and (2) no person or other "group" (other than the other Permitted
Holdersspecified in clauses (i), (ii) and (iii)) beneficially owns more than
the greater of 35% and the percentage beneficially owned bythe Permitted
Holders specified in clauses (i) and (ii) on a fully diluted basis of the
voting Equity Interests held by the PermittedHolder Group.
"
Permitted Investments
"shall mean:
(a) directobligations of the United States of America or any member of
the European Union or any agency thereof or obligations guaranteed by
theUnited States of America or any member of the European Union or any agency
thereof, in each case with maturities not exceeding two yearsfrom the date of
acquisition thereof;
(b) timedeposit accounts, certificates of deposit, money market
deposits, banker's acceptances and other bank deposits maturing within 180days
of the date of acquisition thereof issued by a bank or trust company that is
organized under the laws of the United States of America,any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits in excessof $250,000,000 and whose long-term
debt, or whose parent holding company's long-term debt, is rated A (or such
similar equivalentrating or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act));
(c) repurchaseobligations with a term of not more than 180 days for
underlying securities of the types described in clause (a) above entered
intowith a bank meeting the qualifications described in clause (b) above;
55
(d) commercialpaper, maturing not more than one year after the date of
acquisition, issued by a corporation (other than an Affiliate of the
Borrower)organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States of Americawith
a rating at the time as of which any investment therein is made of P 1 (or
higher) according to Moody's, or A 1 (or higher)according to S&P (or such
similar equivalent rating or higher by at least one nationally recognized
statistical rating organization(as defined in Rule 436 under the Securities
Act));
(e) securitieswith maturities of two years or less from the date of
acquisition, issued or fully guaranteed by any State, commonwealth or
territoryof the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least A by S&P or A byMoody's (or such
similar equivalent rating or higher by at least one nationally recognized
statistical rating organization (as definedin Rule 436 under the Securities
Act));
(f) sharesof mutual funds whose investment guidelines restrict 95% of
such funds' investments to those satisfying the provisions of clauses(a)
through (e) above;
(g) moneymarket funds that (i) comply with the criteria set forth in
Rule 2a 7 under the Investment Company Act of 1940, (ii) are ratedAAA by S&P
and Aaa by Moody's and (iii) have portfolio assets of at least $5,000,000,000;
(h) timedeposit accounts, certificates of deposit, money market
deposits, banker's acceptances and other bank deposits in an aggregate
faceamount not in excess of 0.50% of the total assets of the Borrower and the
Subsidiaries, on a consolidated basis, as of the end of theBorrower's most
recently completed fiscal year; and
(i) instrumentsequivalent to those referred to in clauses (a) through
(h) above denominated in any foreign currency comparable in credit quality
andtenor to those referred to above and commonly used by corporations for cash
management purposes in any jurisdiction outside the UnitedStates of America to
the extent reasonably required in connection with any business conducted by
any Subsidiary organized in such jurisdiction.
"
Permitted JuniorIntercreditor Agreement
" shall mean, with respect to any Liens on Collateral that are intended to be
junior to any Liens securingthe Term B-1 Loans (and other Loan Obligations
that are pari passu with the Term B-1 Loans) (including, for the avoidance of
doubt, juniorLiens pursuant to Section 2.21(b)(ii) and (v)), either (as the
Borrower shall elect) (x) the First Lien/Second Lien IntercreditorAgreement if
such Liens secure "Second Lien Obligations" (as defined therein), (y) another
intercreditor agreement notmaterially less favorable to the Lenders vis-a-vis
such junior Liens than the First Lien/Second Lien Intercreditor Agreement
(asdetermined by the Borrower in good faith) or (z) another intercreditor
agreement the terms of which are consistent with market termsgoverning
security arrangements for the sharing of liens on a junior basis at the time
such intercreditor agreement is proposed to beestablished in light of the type
of Indebtedness to be secured by such liens, as determined by the
Administrative Agent and the Borrowerin the exercise of reasonable judgment.
"
Permitted Liens
"shall have the meaning assigned to such term in Section 6.02.
"
Permitted LoanPurchase
" shall have the meaning assigned to such term in Section 9.04(i).
"
Permitted LoanPurchase Assignment and Acceptance
" shall mean an assignment and acceptance entered into by a Lender as an
Assignor and Holdings,the Borrower or any of the Subsidiaries as an Assignee,
as accepted by the Administrative Agent (if required by Section 9.04) in the
formof
56
Exhibit F or such other form as shallbe approved by the Administrative Agent
and the Borrower (such approval not to be unreasonably withheld or delayed).
"
Permitted PariPassu Intercreditor Agreement
" shall mean, with respect to any Liens on Collateral that are intended to be
pari passu with theLiens securing the Term B-1 Loans (and other Loan
Obligations that are pari passu with the Term B-1 Loans), either (as the
Borrower shallelect) (x) the First Lien/First Lien Intercreditor Agreement,
(y) another intercreditor agreement not materially less favorableto the
Lenders vis-a-vis such pari passu Liens than the First Lien/First Lien
Intercreditor Agreement (as determined by the Borrowerin good faith) or (z)
another intercreditor agreement the terms of which are consistent with market
terms governing security arrangementsfor the sharing of liens on a pari passu
basis at the time such intercreditor agreement is proposed to be established
in light of thetype of Indebtedness to be secured by such liens, as determined
by the Administrative Agent and the Borrower in the exercise of reasonablejudgme
nt.
"
Permitted RefinancingIndebtedness
" shall mean any Indebtedness issued in exchange for, or the net proceeds of
which are used to extend, refinance,renew, replace, defease or refund
(collectively, to "
Refinance
"), the Indebtedness being Refinanced (or previous refinancingsthereof
constituting Permitted Refinancing Indebtedness);
provided
, that (a) the principal amount (or accreted value, if applicable)of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtednessso Refinanced (plus unpaid
accrued interest and premium (including tender premiums) thereon and
underwriting discounts, defeasance costs,fees, commissions, expenses,
plus
an amount equal to any existing commitment unutilized thereunder and letters
of credit undrawnthereunder), (b) except with respect to Section 6.01(i), (i)
the final maturity date of such Permitted Refinancing Indebtednessis on or
after the earlier of (x) the final maturity date of the Indebtedness being
Refinanced and (y) the Latest Maturity Datein effect at the time of incurrence
thereof and (ii) the Weighted Average Life to Maturity of such Permitted
Refinancing Indebtednessis greater than or equal to the lesser of (i) the
Weighted Average Life to Maturity of the Indebtedness being Refinanced and
(ii) theWeighted Average Life to Maturity of the Class of Term Loans then
outstanding with the greatest remaining Weighted Average Life to Maturity,(c)
if the Indebtedness being Refinanced is subordinated in right of payment to
the Loan Obligations under this Agreement, such PermittedRefinancing
Indebtedness shall be subordinated in right of payment to such Loan
Obligations on terms in the aggregate not materially lessfavorable to the
Lenders as those contained in the documentation governing the Indebtedness
being Refinanced, (d) no Permitted RefinancingIndebtedness shall have obligors
that are not (or would not have been) obligated with respect to the
Indebtedness being so Refinanced(except that a Loan Party may be added as an
additional obligor) and (e) if the Indebtedness being Refinanced is secured by
Liens on anyCollateral (whether senior to, equally and ratably with, or junior
to the Liens on such Collateral securing the Loan Obligations or otherwise),such
Permitted Refinancing Indebtedness may be secured by such Collateral
(including any Collateral pursuant to after-acquired propertyclauses to the
extent any such Collateral secured (or would have secured) the Indebtedness
being Refinanced) on terms in the aggregatethat are substantially similar to,
or not materially less favorable to the Secured Parties than, the Indebtedness
being refinanced oron terms otherwise permitted by Section 6.02.
"
Permitted SecuritizationDocuments
" shall mean all documents and agreements evidencing, relating to or otherwise
governing a Permitted SecuritizationFinancing.
"
Permitted SecuritizationFinancing
" shall mean one or more transactions pursuant to which (i) Securitization
Assets or interests therein aresold to or financed by one or more Special
Purpose Securitization Subsidiaries, and (ii) such Special Purpose
Securitization Subsidiariesfinance their acquisition of such Securitization
Assets or interests therein, or the financing thereof, by selling or borrowing
againstSecuritization Assets and any Hedging Agreements entered into in
connection with such Securitization Assets;
provided
, that recourseto the Borrower or any Subsidiary (other than the Special
57
Purpose Securitization Subsidiaries) in connectionwith such transactions shall
be limited to the extent customary (as determined by the Borrower in good
faith in consultation with theAdministrative Agent) for similar transactions
in the applicable jurisdictions (including, to the extent applicable, in a
manner consistentwith the delivery of a "true sale"/"absolute transfer"
opinion with respect to any transfer by the Borrower orany Subsidiary (other
than a Special Purpose Securitization Subsidiary)).
"
person
"shall mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability companyor government,
individual or family trusts, or any agency or political subdivision thereof.
"
Plan
"shall mean any employee pension benefit plan (other than a Multiemployer
Plan) that is (i) subject to the provisions of Title IVof ERISA or Section 412
of the Code or Section 302 of ERISA, (ii) sponsored or maintained (at the time
of determinationor at any time within the five years prior thereto) by
Holdings, the Borrower, any Subsidiary or any ERISA Affiliate, and (iii)
inrespect of which Holdings, the Borrower, any Subsidiary or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"
Platform
"shall have the meaning assigned to such term in Section 9.17(a).
"
Pledged Collateral
"shall have the meaning assigned to such term in the Collateral Agreement.
"
Preferred SecuritiesContribution
" shall mean the Preferred Securities Contribution (as defined in the First
Incremental Assumption and AmendmentAgreement).
"
Previously AbsentFinancial Maintenance Covenant
" shall have the meaning assigned to such term in Section 2.21(b)(x).
"
Pricing Grid
"shall mean, with respect to the 2021 Revolving Loans and 2021 Revolving
Facility Commitments the table set forth below:
Pricing Grid for 2021 Revolving Loans
Net First Lien Leverage Ratio Applicable Margin for ABR Loans Applicable Margin for SOFR Loans
Greater than 1.35 to 1.00 1.75% 2.75%
Less than or equal to 1.35 to 1.00 1.50% 2.50%
Pricing Grid for 2021 Revolving Facility Commitments
Net First Lien Leverage Ratio Applicable Commitment Fee
Greater than 1.35 to 1.00 0.50%
Less than or equal to 1.35 to 1.00 0.375%
58
For the purposes of the PricingGrid, changes in the Applicable Margin and
Applicable Commitment Fee resulting from changes in the Net First Lien
Leverage Ratio shallbecome effective on the date (the "
Adjustment Date
") that is three Business Days after the date on which the relevantfinancial
statements and certificate required by Section 5.04(c)(x)(iii) are delivered
to the Administrative Agent pursuant to Section 5.04for each fiscal quarter
and shall remain in effect until the next change to be effected pursuant to
this paragraph. If any financial statementsor the certificate referred to in
the preceding sentence are not delivered within the time periods specified in
Section 5.04, then,at the option of the Administrative Agent or the Required
Lenders, until the date that is three Business Days after the date on
whichsuch financial statements or such certificate, as applicable, are
delivered, the pricing level that is one pricing level higher than thepricing
level theretofore in effect shall apply as of the first Business Day after the
date on which such financial statements or suchcertificate, as applicable,
were to have been delivered but were not delivered. Each determination of the
Net First Lien Leverage Ratiopursuant to the Pricing Grid shall be made in a
manner consistent with the determination thereof pursuant to Section 6.11.
"
primary obligor
"shall have the meaning assigned to such term in the definition of the term
"Guarantee."
"
Prime Rate
"shall mean the rate of interest last quoted by The Wall Street Journal as the
"Prime Rate" in the U.S. or, if The Wall StreetJournal ceases to quote such
rate, the highest per annum interest rate published by the Board in Federal
Reserve Statistical Release H.15(519) (Selected Interest Rates) as the "bank
prime loan" rate or, if such rate is no longer quoted therein, any similar
ratequoted therein (as determined by the Administrative Agent) or any similar
release by the Board (as determined by the Administrative Agent).
"
Pro Forma Basis
"shall mean, as to any person, for any events as described below that occur
subsequent to the commencement of a period for which the financialeffect of
such events is being calculated, and giving effect to the events for which
such calculation is being made, such calculationas will give pro forma effect
to such events as if such events occurred on the first day of the four
consecutive fiscal quarter periodended on or before the occurrence of such
event (the "
Reference Period
"): (i) pro forma effect shall be givento any Disposition, any acquisition,
Investment, capital expenditure, construction, repair, replacement,
improvement, development, disposition,merger, amalgamation, consolidation
(including the 2015 Transactions and the ADT Transactions) (or any similar
transaction or transactionsnot otherwise permitted under Section 6.04 or 6.05
that require a waiver or consent of the Required Lenders and such waiver or
consenthas been obtained), any dividend, distribution or other similar
payment, any designation of any Subsidiary as an Unrestricted Subsidiaryand
any Subsidiary Redesignation, New Project, and any restructurings of the
business of the Borrower or any of its Subsidiaries thatthe Borrower or any of
the Subsidiaries has determined to make and/or made and are expected to have a
continuing impact and are factuallysupportable, which would include cost
savings resulting from head count reduction, closure of facilities and similar
operational and othercost savings, which adjustments the Borrower determines
are reasonable as set forth in a certificate of a Financial Officer of the
Borrower(the foregoing, together with any transactions related thereto or in
connection therewith, the "
relevant transactions
"),in each case that occurred during the Reference Period (or, in the case of
determinations made pursuant to Section 2.21 or Article VI(other than Section
6.11), occurring during the Reference Period or thereafter and through and
including the date upon which the relevanttransaction is consummated), (ii) in
making any determination on a Pro Forma Basis, (x) all Indebtedness (including
Indebtednessissued, incurred or assumed as a result of, or to finance, any
relevant transactions and for which the financial effect is being
calculated,whether incurred under this Agreement or otherwise, but excluding
normal fluctuations in revolving Indebtedness incurred for working
capitalpurposes and amounts outstanding under any Permitted Securitization
Financing, in each case not to finance any acquisition) issued, incurred,assumed
or permanently repaid, repurchased or refinanced during the Reference Period
(or, in the case of determinations made pursuantto Section 2.21 or Article VI
(other than Section 6.11), occurring during the
59
Reference Period or thereafter and throughand including the date upon which
the relevant transaction is consummated) shall be deemed to have been issued,
incurred, assumed or permanentlyrepaid at the beginning of such period, (y)
Interest Expense of such person attributable to interest on any Indebtedness,
for whichpro forma effect is being given as provided in the preceding clause
(x), bearing floating interest rates shall be computed on a proforma basis as
if the rates that would have been in effect during the period for which pro
forma effect is being given had been actuallyin effect during such periods,
and (z) in giving effect to clause (i) above with respect to each New Project
which commencesoperations and records not less than one full fiscal quarter's
operations during the Reference Period, the operating results ofsuch New
Project shall be annualized on a straight line basis during such period,
taking into account any seasonality adjustments determinedby the Borrower in
good faith, and (iii) (A) for any Subsidiary Redesignation then being
designated, effect shall be given to suchSubsidiary Redesignation and all
other Subsidiary Redesignations after the first day of the relevant Reference
Period and on or priorto the date of the respective Subsidiary Redesignation
then being designated, collectively, and (B) for any designation of a
Subsidiaryas an Unrestricted Subsidiary, effect shall be given to such
designation and all other designations of Subsidiaries as Unrestricted
Subsidiariesafter the first day of the relevant Reference Period and on or
prior to the date of the then applicable designation of a Subsidiary asan
Unrestricted Subsidiary, collectively.
In the event that EBITDAor any financial ratio is being calculated or
compliance with any test or usage of any baskets is being determined for
purposes of determiningwhether Indebtedness or any Lien relating thereto may
be incurred or whether any acquisition of assets or Equity Interests
(includinga Permitted Business Acquisition) or any other Investment may be
made, the Borrower may elect pursuant to a certificate of a ResponsibleOfficer
delivered to the Administrative Agent to treat all or any portion of the
Indebtedness or Liens as being incurred or the acquisitionor Investment as
being consummated, in each case, at the time of any commitment, definitive
agreement, declaration, notice, action orsimilar event (such date, the "
Election Date
"), in which case any subsequent incurrence of Indebtedness or Lien
orconsummation of the acquisition or Investment shall be deemed, for all
purposes under this Agreement, including, without limitation, forcalculating
any ratio or EBITDA or determining compliance with any test or usage of any
baskets hereunder and for purposes of determiningwhether there exists any
Default or Event of Default, to have been incurred, made or consummated, as
applicable, on the Election Date.
Pro forma calculations madepursuant to the definition of the term "Pro Forma
Basis" shall be determined in good faith by a Responsible Officer of
theBorrower and may include adjustments to reflect (1) operating expense
reductions and other operating improvements, synergies or costsavings
reasonably expected to result from any relevant pro forma event (including, to
the extent applicable, the 2015 Transactions andthe ADT Transactions) and (2)
all adjustments of the type used in connection with the calculation of
"Adjusted EBITDA" asset forth in the Information Memorandum to the extent such
adjustments, without duplication, continue to be applicable to such
ReferencePeriod;
provided
that for all purposes of determining EBITDA hereunder, (i) adjustments for
operating expense reductions and otheroperating improvements, synergies or
cost savings shall not be more than 20% of EBITDA for the most recently ended
four fiscal quarterperiod (calculated prior to giving effect to such capped
adjustments (but, for the avoidance of doubt, after giving effect to other
uncappedpro forma adjustments)) and (ii) actions resulting in operating
expense reductions and other operating improvements, synergies or costsavings
are, in each case, required to be taken or commenced or expected to be taken
or commenced (in the good faith determination ofthe Borrower) within 18 months
after the date any such calculation is performed, except in the case of any
adjustments of the type andin connection with the determination of "Adjusted
EBITDA" as set forth in the Information Memorandum, including any
operatingexpense reductions and other improvements, synergies or cost savings
resulting from the ADT Transactions. The Borrower shall deliver tothe
Administrative Agent a certificate of a Financial Officer of the Borrower
setting forth such operating expense reductions, other operatingimprovements
or synergies and adjustments pursuant to clause (2) above, and information and
calculations supporting them in reasonabledetail.
60
For purposes of this definition,any amount in a currency other than Dollars
will be converted to Dollars based on the average exchange rate for such
currency for themost recent twelve month period immediately prior to the date
of determination in a manner consistent with that used in calculating
EBITDAfor the applicable period.
"
Pro Forma Compliance
"shall mean, at any date of determination, that the Borrower and its
Subsidiaries shall be in compliance, on a Pro Forma Basis after givingeffect
on a Pro Forma Basis to the relevant transactions (including the assumption,
the issuance, incurrence and permanent repayment ofIndebtedness), with the
Financial Covenant recomputed as at the last day of the most recently ended
fiscal quarter of the Borrower andits Subsidiaries for which the financial
statements and certificates required pursuant to Section 5.04 have been
delivered. For theavoidance of doubt, Pro Forma Compliance shall be tested
without regard to whether or not the Financial Covenant was or was required
tobe tested on the applicable quarter-end date.
"
Pro Rata ExtensionOffers
" shall have the meaning assigned to such term in Section 2.21(e).
"
Pro Rata Share
"shall have the meaning assigned to such term in Section 9.08(f).
"
Projections
"shall mean the projections of the Borrower and the Subsidiaries included in
the Information Memorandum and any other projections and anyforward-looking
statements (including statements with respect to booked business) of such
entities furnished to the Lenders or the AdministrativeAgent by or on behalf
of the Borrower or any of the Subsidiaries prior to the Closing Date.
"
Protection One
"shall mean Protection One, Inc., a Delaware corporation.
"
Public CompanyCompliance
" shall mean compliance with the requirements of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgatedin connection therewith, the
provisions of the Securities Act and the Exchange Act, and the rules of
national securities exchange listedcompanies (in each case, as applicable to
companies with equity or debt securities held by the public), including
procuring directors'and officers' insurance, legal and other professional
fees, and listing fees.
"
Public Lender
"shall have the meaning assigned to such term in Section 9.17(b).
"
Qualified EquityInterests
" shall mean any Equity Interest other than Disqualified Stock.
"
Qualified IPO
"shall mean an underwritten public offering of the Equity Interests of the
Borrower, Holdings or any Parent Entity which generates (individuallyor in the
aggregate together with any prior underwritten public offering) gross cash
proceeds of at least $70,000,000.
"
Rate
"shall have the meaning assigned to such term in the definition of the term
"Type."
"
Real Property
"shall mean, collectively, all right, title and interest (including any
leasehold estate) in and to any and all parcels of or interestsin real
property owned in fee or leased by any Loan Party, whether by lease, license,
or other means, together with, in each case, alleasements, hereditaments and
appurtenances relating thereto, all improvements and appurtenant fixtures and
equipment, incidental to theownership, lease or operation thereof.
"
Receivables Assets
"shall mean accounts receivable (including any bills of exchange) and related
assets and property from time to time originated, acquiredor otherwise owned
by the Borrower or any Subsidiary.
61
"
Receivables NetInvestment
" shall mean the aggregate cash amount paid by the lenders or purchasers under
any Permitted Securitization Financingin connection with their purchase of, or
the making of loans secured by, Receivables Assets or interests therein, as
the same may be reducedfrom time to time by collections with respect to such
Receivables Assets or otherwise in accordance with the terms of the Permitted
SecuritizationDocuments (but excluding any such collections used to make
payments of items included in clause (c) of the definition of "InterestExpense")
;
provided
,
however
, that if all or any part of such Receivables Net Investment shall have been
reduced byapplication of any distribution and thereafter such distribution is
rescinded or must otherwise be returned for any reason, such ReceivablesNet
Investment shall be increased by the amount of such distribution, all as
though such distribution had not been made.
"
Reference Period
"shall have the meaning assigned to such term in the definition of the term
"Pro Forma Basis."
"
Refinance
"shall have the meaning assigned to such term in the definition of the term
"Permitted Refinancing Indebtedness," and "
Refinanced
"and "
Refinancings
" shall have a meaning correlative thereto.
"
Refinancing EffectiveDate
" shall have the meaning assigned to such term in Section 2.21(j).
"
Refinancing Notes
"shall mean any secured or unsecured notes or loans issued by the Borrower or
any Subsidiary Loan Party (whether under an indenture, acredit agreement or
otherwise) and the Indebtedness represented thereby;
provided
, that (a) (i) 100% of the Net Proceedsof such Refinancing Notes that are
secured on a pari passu basis with the Term B-1 Loans are used to permanently
reduce Loans and/or replaceCommitments substantially simultaneously with the
issuance thereof or (ii) 90% of the Net Proceeds of any other Refinancing
Notesare used to permanently reduce Loans and/or replace Commitments
substantially simultaneously with the issuance thereof; (b) the principalamount
(or accreted value, if applicable) of such Refinancing Notes does not exceed
the principal amount (or accreted value, if applicable)of the aggregate
portion of the Loans so reduced and/or Commitments so replaced (plus unpaid
accrued interest and premium (including tenderpremiums) thereon and
underwriting discounts, defeasance costs, fees, commissions and expenses); (c)
the final maturity date of suchRefinancing Notes is on or after the Term
Facility Maturity Date or the Revolving Facility Maturity Date, as applicable,
of the Term Loansso reduced or the Revolving Facility Commitments so replaced;
(d) the Weighted Average Life to Maturity of such Refinancing Notesis greater
than or equal to the Weighted Average Life to Maturity of the Term Loans so
reduced or the Revolving Facility Commitments soreplaced, as applicable; (e)
in the case of Refinancing Notes in the form of notes issued under an
indenture, the terms thereof do notprovide for any scheduled repayment,
mandatory redemption or sinking fund obligations prior to the Term Facility
Maturity Date of theTerm Loans so reduced or the Revolving Facility Maturity
Date of the Revolving Facility Commitments so replaced, as applicable
(otherthan customary offers to repurchase or mandatory prepayment provisions
upon a change of control, asset sale or event of loss and customaryacceleration
rights after an event of default); (f) the other terms of such Refinancing
Notes (other than interest rates, fees, floors,funding discounts and
redemption or prepayment premiums and other pricing terms), taken as a whole,
are substantially similar to, or notmaterially less favorable to the Borrower
and its Subsidiaries than the terms, taken as a whole, applicable to the Term
B-1 Loans (exceptfor covenants or other provisions applicable only to periods
after the Latest Maturity Date in effect at the time such Refinancing Notesare
issued), as determined by the Borrower in good faith (or, if more restrictive,
the Loan Documents are amended to contain such morerestrictive terms to the
extent required to satisfy the foregoing standard); (g) there shall be no
obligor in respect of such RefinancingNotes that is not a Loan Party; and (h)
Refinancing Notes that are secured by Collateral shall be subject to the
provisions of a PermittedPari Passu Intercreditor Agreement or a Permitted
Junior Intercreditor Agreement, as applicable.
62
"
Refinancing TermLoans
" shall have the meaning assigned to such term in Section 2.21(j).
"
Register
"shall have the meaning assigned to such term in Section 9.04(b)(iv).
"
Regulation T
"shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
"
Regulation U
"shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
"
Regulation X
"shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
"
Related Fund
"shall mean, with respect to any Lender that is a fund that invests in bank or
commercial loans and similar extensions of credit, any otherfund that invests
in bank or commercial loans and similar extensions of credit and is advised or
managed by (a) such Lender, (b) anAffiliate of such Lender or (c) an entity
(or an Affiliate of such entity) that administers, advises or manages such
Lender.
"
Related Parties
"shall mean, with respect to any specified person, such person's Controlled or
Controlling Affiliates and the respective directors,trustees, officers,
employees, agents and advisors of such person and such person's Controlled or
Controlling Affiliates.
"
Related Sections
"shall have the meaning assigned to such term in Section 6.04.
"
Release
"shall mean any spilling, leaking, seepage, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping,disposing,
depositing, emanating or migrating in, into, onto or through the Environment.
"
Relevant GovernmentalBody
" shall mean (i) with respect to a Benchmark Replacement in respect of Loans
denominated in Dollars, the Board or the FederalReserve Bank of New York, or a
committee officially endorsed or convened by the Board or the Federal Reserve
Bank of New York, or anysuccessor thereto and (ii) with respect to a Benchmark
Replacement in respect of Loans denominated in any Alternate Currency, (a)
thecentral bank for the currency in which such Benchmark Replacement is
denominated or any central bank or other supervisor which is responsiblefor
supervising either (1) such Benchmark Replacement or (2) the administrator of
such Benchmark Replacement or (b) any working groupor committee officially
endorsed or convened by (1) the central bank for the currency in which such
Benchmark Replacement is denominated,(2) any central bank or other supervisor
that is responsible for supervising either (A) such Benchmark Replacement or
(B) the administratorof such Benchmark Replacement, (3) a group of those
central banks or other supervisors or (4) the Financial Stability Board or any
partthereof.
"
Replacement RevolvingFacilities
" shall have the meaning assigned to such term in Section 2.21(l).
"
Replacement RevolvingFacility Commitments
" shall have the meaning assigned to such term in Section 2.21(l).
"
Replacement RevolvingFacility Effective Date
" shall have the meaning assigned to such term in Section 2.21(l).
"
Replacement RevolvingLoans
" shall have the meaning assigned to such term in Section 2.21(l).
63
"
Reportable Event
"shall mean any reportable event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those eventsas to which the 30-day
notice period referred to in Section 4043(c) of ERISA has been waived, with
respect to a Plan (other thana Plan maintained by an ERISA Affiliate that is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414of the Code).
"
Required Lenders
"shall mean, at any time, Lenders having (a) Loans (other than Swingline
Loans) outstanding, (b) Revolving L/C Exposures, (c)Swingline Exposures and
(d) Available Unused Commitments that, taken together, represent more than 50%
of the sum of (w) all Loans(other than Swingline Loans) outstanding, (x) all
Revolving L/C Exposures, (y) all Swingline Exposures and (z) the total
AvailableUnused Commitments at such time;
provided
, that (i) the Loans, Revolving L/C Exposures, Swingline Exposures and
AvailableUnused Commitment of any Defaulting Lender shall be disregarded in
determining Required Lenders at any time and (ii) the portionof any Term Loans
held by Debt Fund Affiliate Lenders in the aggregate in excess of 49.9% of the
Required Amount of Loans shall be disregardedin determining Required Lenders
at any time. For purposes of the foregoing, "
Required Amount of Loans
" shall mean,at any time, the amount of Loans required to be held by Lenders
in order for such Lenders to constitute "Required Lenders"(without giving
effect to the foregoing clause (ii)).
"
Required Percentage
"shall mean, with respect to an Applicable Period, 50%;
provided
, that (a) if the Net First Lien Leverage Ratio as at the end ofthe Applicable
Period is less than or equal to 2.70 to 1.00, such percentage shall be 25% and
(b) if the Net First Lien Leverage Ratioas at the end of the Applicable Period
is less than or equal to 2.20 to 1.00, such percentage shall be 0%.
"
Required PrepaymentLenders
" shall mean, at any time, the holders of more than 50% of the aggregate
unpaid principal amount of the Term Loans atsuch time (subject to the last
paragraph of Section 9.08(b)).
"
Required RevolvingFacility Lenders
" shall mean, at any time, Revolving Facility Lenders having (a) Revolving
Facility Loans (other than SwinglineLoans) outstanding, (b) Revolving L/C
Exposures, (c) Swingline Exposures and (d) Available Unused Commitments that,
taken together,represent more than 50% of the sum of (w) all Revolving
Facility Loans (other than Swingline Loans) outstanding, (x) all RevolvingL/C
Exposures, (y) all Swingline Exposures and (z) the total Available Unused
Commitments at such time;
provided
, that theRevolving Facility Loans, Revolving L/C Exposures, Swingline
Exposures and Available Unused Commitment of any Defaulting Lender shallbe
disregarded in determining Required Revolving Facility Lenders at any time.
"
Requirement ofLaw
" shall mean, as to any person, any law, treaty, rule, regulation, statute,
order, ordinance, decree, judgment, consent decree,writ, injunction,
settlement agreement or governmental requirement enacted, promulgated or
imposed or entered into or agreed by any GovernmentalAuthority, in each case
applicable to or binding upon such person or any of its property or assets or
to which such person or any of itsproperty or assets is subject.
"
Resolution Authority
"shall mean an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK Resolution Authority.
"
Responsible Officer
"of any person shall mean any executive officer or Financial Officer of such
person and any other officer or similar official thereof responsiblefor the
administration of the obligations of such person in respect of this Agreement,
or any other duly authorized employee or signatoryof such person.
64
"
Restricted Payments
"shall have the meaning assigned to such term in Section 6.06. The amount of
any Restricted Payment made other than in the form ofcash or cash equivalents
shall be the fair market value thereof (as determined by the Borrower in good
faith).
"
Restricted PaymentsIncurrence Clause
" shall have the meaning assigned to such term in the last paragraph of
Section 6.06.
"
Retained ExcessCash Flow Overfunding
" shall mean, at any time, in respect of any Excess Cash Flow Period ending on
or after the Eighth AmendmentAgreement Effective Date, the amount, if any, by
which the portion of the Cumulative Credit attributable to the Retained
Percentage ofExcess Cash Flow for all Excess Cash Flow Interim Periods used in
such Excess Cash Flow Period exceeds the actual Retained Percentageof Excess
Cash Flow for such Excess Cash Flow Period.
"
Retained Percentage
"shall mean, with respect to any Excess Cash Flow Period (or Excess Cash Flow
Interim Period), (a) 100%
minus
(b) theRequired Percentage with respect to such Excess Cash Flow Period (or
Excess Cash Flow Interim Period).
"
Revaluation Date
"shall mean (a) with respect to any Alternate Currency Letter of Credit, each
of the following: (i) each date of issuance, extensionor renewal of an
Alternate Currency Letter of Credit, (ii) each date of an amendment of any
Alternate Currency Letter of Credit havingthe effect of increasing the amount
thereof, (iii) each date of any payment by the applicable Issuing Bank under
such Alternate CurrencyLetter of Credit, and (iv) such additional dates as the
Administrative Agent or the applicable Issuing Bank shall determine or
theRequired Lenders shall require and (b) with respect to any Alternate
Currency Loans, each of the following: (i) each date of a Borrowingof
Revolving Facility Loans denominated in an Alternate Currency, (ii) each date
of a continuation of a Revolving Facility Loan denominatedin an Alternate
Currency pursuant to Section 2.07, and (iii) such additional dates as the
Administrative Agent shall determine or theMajority Lenders under the
Revolving Facility shall require.
"
Revolving Facility
"shall mean the Revolving Facility Commitments of any Class and the extensions
of credit made hereunder by the Revolving Facility Lendersof such Class and,
for purposes of Section 9.08(b), shall refer to all such Revolving Facility
Commitments as a single Class.
"
Revolving FacilityBorrowing
" shall mean a Borrowing comprised of Revolving Facility Loans of the same
Class.
"
Revolving FacilityCommitment
" shall mean any 2021 Revolving Facility Commitment or Incremental Revolving
Facility Commitment. As of the EleventhIncremental Assumption and Amendment
Agreement Effective Date, there was one Class of Revolving Facility
Commitments (the 2021 RevolvingFacility Commitments). After the Eleventh
Incremental Assumption and Amendment Agreement Effective Date, additional
Classes of RevolvingFacility Commitments may be added or created pursuant to
Incremental Assumption Agreements.
"
Revolving FacilityCredit Exposure
" shall mean, at any time with respect to any Class of Revolving Facility
Commitments, the sum of (a)
theaggregate principal amount of the Revolving Facility Loans of such Class
outstanding at such time (calculated, in the case of AlternateCurrency Loans,
based on the Dollar Equivalent thereof), (b) the Swingline Exposure and (c)
the Revolving L/C Exposure applicableto such Class at such time
minus
, for the purpose of Sections 6.11 and 7.03, the amount of Letters of Credit
that have beenCash Collateralized in an amount equal to the Minimum L/C
Collateral Amount at such time. The Revolving Facility Credit Exposure of
anyRevolving Facility Lender at any time shall be the product of (x) such
Revolving Facility Lender's Revolving Facility Percentageof the applicable
Class
65
and (y) the aggregate Revolving FacilityCredit Exposure of such Class of all
Revolving Facility Lenders, collectively, at such time.
"
Revolving FacilityLender
" shall mean a Lender (including an Incremental Revolving Facility Lender)
with a Revolving Facility Commitment or withoutstanding Revolving Facility
Loans.
"
Revolving FacilityLoan
" shall mean a Loan made by a Revolving Facility Lender pursuant to Section
2.01(d). Unless the context otherwise requires,the term "Revolving Facility
Loans" shall include the Other Revolving Loans.
"
Revolving FacilityMaturity Date
" shall mean, as the context may require, (a) with respect to the 2021
Revolving Facility Commitment, the 2021Revolving Facility Maturity Date and
(b) with respect to any other Classes of Revolving Facility Commitments, the
maturity datesspecified therefor in the applicable Incremental Assumption
Agreement.
"
Revolving FacilityPercentage
" shall mean, with respect to any Revolving Facility Lender of any Class, the
percentage of the total Revolving FacilityCommitments of such Class
represented by such Lender's Revolving Facility Commitment of such Class. If
the Revolving Facility Commitmentsof such Class have terminated or expired,
the Revolving Facility Percentages of such Class shall be determined based
upon the RevolvingFacility Commitments of such Class most recently in effect,
giving effect to any assignments pursuant to Section 9.04.
"
Revolving FacilityTermination Event
" shall have the meaning ascribed thereto in Section 2.05(k).
"
Revolving L/C Exposure
"of any Class shall mean at any time the sum of (a)
the aggregate undrawn amount of all Letters of Credit applicable to suchClass
outstanding at such time (calculated, in the case of Alternate Currency
Letters of Credit, based on the Dollar Equivalent thereof)and (b) the
aggregate principal amount of all L/C Disbursements applicable to such Class
that have not yet been reimbursed at suchtime (calculated, in the case of
Alternate Currency Letters of Credit, based on the Dollar Equivalent thereof).
The Revolving L/C Exposureof any Class of any Revolving Facility Lender at any
time shall mean its applicable Revolving Facility Percentage of the aggregate
RevolvingL/C Exposure applicable to such Class at such time. For all purposes
of this Agreement, if on any date of determination a Letter of Credithas
expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the International StandbyPractices,
International Chamber of Commerce No. 590, such Letter of Credit shall be
deemed to be "outstanding" in the amountso remaining available to be drawn.
Unless otherwise specified herein, the amount of a Letter of Credit at any
time shall be deemed tobe 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 document related thereto, provides for one 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 allsuch increases, whether or not such maximum stated amount is in effect
at such time.
"
S&P
"shall mean Standard & Poor's Ratings Group, Inc.
"
Sale and Lease-BackTransaction
" shall have the meaning assigned to such term in Section 6.03.
"
SEC
"shall mean the Securities and Exchange Commission or any successor thereto.
"
Second Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
66
"
Second IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement No. 2 dated as
of the SecondIncremental Assumption and Amendment Agreement Effective Date by
and among Holdings, the Borrower, the Subsidiary Loan Parties party
thereto,the Lenders party thereto and the Administrative Agent.
"
Second IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Second Lien CreditAgreement
" shall mean the Second Lien Credit Agreement, dated as of the Original
Closing Date, among Holdings, the Borrower,as borrower, the lenders party
thereto and Credit Suisse AG, Cayman Islands Branch, as administrative agent,
as such document may be amended,renewed, restated, supplemented or otherwise
modified from time to time.
"
Second Lien LoanDocuments
" shall mean the Second Lien Credit Agreement and the other "Loan Documents"
under and as defined in theSecond Lien Credit Agreement, as each such document
may be amended, renewed, restated, supplemented or otherwise modified from
time totime.
"
Second PrioritySenior Secured Notes
" shall mean the $3,140,000,000 in aggregate principal amount of the 9.250%
Second Priority Senior SecuredNotes due 2023 issued pursuant to the Second
Priority Senior Secured Notes Indenture.
"
Second PrioritySenior Secured Notes Documents
" shall mean the Second Priority Senior Secured Notes, the Second Priority
Senior Secured NotesIndenture, the "Second Lien Intercreditor Agreement" (as
defined in the Second Priority Senior Secured Notes Indenture), the"First
Lien/Second Lien Intercreditor Agreement" (as defined in the Second Priority
Senior Secured Notes Indenture) and the"Security Documents" (as defined in the
Second Priority Senior Secured Notes Indenture), as each such document may be
amended,restated, supplemented or otherwise modified from time to time.
"
Second PrioritySenior Secured Notes Indenture
" shall mean the Indenture, dated as of the Closing Date, among the Borrower,
as co-issuer, PrimeFinance Inc., as co-issuer, the subsidiary guarantors party
thereto from time to time and Wells Fargo Bank, National Association, as
trustee,as such document may be amended, restated, supplemented or otherwise
modified from time to time.
"
Secured Cash ManagementAgreement
" shall mean any Cash Management Agreement that is entered into by and between
any Loan Party and any Cash ManagementBank, or any Guarantee by any Loan Party
of any Cash Management Agreement entered into by and between any Subsidiary
and any Cash ManagementBank, in each case to the extent that such Cash
Management Agreement or such Guarantee, as applicable, is not otherwise
designated inwriting by the Borrower and such Cash Management Bank to the
Administrative Agent to not be included as a Secured Cash Management Agreement.
"
Secured Hedge Agreement
"shall mean any Hedging Agreement that is entered into by and between any Loan
Party and any Hedge Bank, or any Guarantee by any Loan Partyof any Hedging
Agreement entered into by and between any Subsidiary and any Hedge Bank, in
each case to the extent that such Hedging Agreementor such Guarantee, as
applicable, is not otherwise designated in writing by the Borrower and such
Hedge Bank to the Administrative Agentto not be included as a Secured Hedge
Agreement. Notwithstanding the foregoing, for all purposes of the Loan
Documents, any Guaranteeof, or grant of any Lien to secure, any obligations in
respect of a Secured Hedge Agreement by a Guarantor shall not include any
ExcludedSwap Obligations.
"
Secured Parties
"shall mean, collectively, the Administrative Agent, the Collateral Agent,
each Lender, each Issuing Bank, each Hedge Bank that is partyto any Secured
Hedge Agreement, each
67
Cash Management Bank that is party to any SecuredCash Management Agreement and
each sub-agent appointed pursuant to Section 8.02 by the Administrative Agent
with respect to mattersrelating to the Loan Documents or by the Collateral
Agent with respect to matters relating to any Security Document.
"
Securities Act
"shall mean the Securities Act of 1933, as amended.
"
SecuritizationAssets
" shall mean any of the following assets (or interests therein) from time to
time originated, acquired or otherwise ownedby the Borrower or any Subsidiary
or in which the Borrower or any Subsidiary has any rights or interests, in
each case, without regardto where such assets or interests are located: (a)
Receivables Assets, (b) franchise fee payments and other revenues related to
franchiseagreements, (c) royalty and other similar payments made related to
the use of trade names and other intellectual property, business support,trainin
g and other services, (d) revenues related to distribution and merchandising
of the products of the Borrower and its Subsidiaries,(e) rents, real estate
taxes and other non-royalty amounts due from franchisees, (f) intellectual
property rights relating to the generationof any of the foregoing types of
assets, (g) parcels of or interests in real property, together with all
easements, hereditaments andappurtenances thereto, all improvements and
appurtenant fixtures and equipment, incidental to the ownership, lease or
operation thereof,and (h) any other assets and property to the extent
customarily included in securitization transactions of the relevant type in
the applicablejurisdictions (as determined by the Borrower in good faith).
"
Security Documents
"shall mean the Mortgages, the Collateral Agreement, the Holdings Guarantee
and Pledge Agreement, the Subsidiary Guarantee Agreement, theIP Security
Agreements (as defined in the Collateral Agreement), and each of the security
agreements, pledge agreements and other instrumentsand documents executed and
delivered pursuant to any of the foregoing or pursuant to Section 5.10.
"
September 2019Engagement Letter
" shall mean that certain Engagement Letter, dated as of September 3, 2019, by
and among the Borrower, BarclaysBank PLC, Deutsche Bank Securities Inc.,
Citigroup Global Markets Inc., Mizuho Bank, Ltd., Royal Bank of Canada, RBC
Capital Markets,LLC, Goldman Sachs Bank USA, Apollo Global Securities, LLC,
Citizens Bank, N.A., Credit Suisse Loan Funding LLC and ING Capital LLC.
"
Seventh Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Seventh IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement No. 7 dated as
of the SeventhIncremental Assumption and Amendment Agreement Effective Date by
and among Holdings, the Borrower, the Subsidiary Loan Parties party
thereto,the Lenders party thereto and the Administrative Agent.
"
Seventh IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Similar Business
"shall mean any business, the majority of whose revenues are derived from (i)
business or activities conducted by the Borrower andits Subsidiaries on the
Closing Date, (ii) any business that is a natural outgrowth or reasonable
extension, development or expansionof any such business or any business
similar, reasonably related, incidental, complementary or ancillary to any of
the foregoing or (iii) anybusiness that in the Borrower's good faith business
judgment constitutes a reasonable diversification of businesses conducted
bythe Borrower and its Subsidiaries.
68
"
Sixteenth IncrementalAssumption and Amendment Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Sixteenth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Sixth Amended andRestated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Sixth IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement No. 6 dated as
of the SixthIncremental Assumption and Amendment Agreement Effective Date by
and among Holdings, the Borrower, the Subsidiary Loan Parties party
thereto,the Lenders party thereto, the Issuing Banks party thereto, the
Swingline Lender and the Administrative Agent.
"
Sixth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
SOFR
"shall mean a rate equal to the secured overnight financing rate as
administered by the SOFR Administrator.
"
SOFR Administrator
"shall mean the Federal Reserve Bank of New York (or a successor administrator
of the secured overnight financing rate).
"
SOFR Borrowing
"shall mean a Borrowing comprised of SOFR Loans.
"
SOFR Loan
"shall mean any SOFR Term Loan or SOFR Revolving Loan.
"
SOFR Rate Day
"shall have the meaning assigned to such term in the definition of "Daily
Simple SOFR".
"
SOFR RevolvingFacility Borrowing
" shall mean a Borrowing comprised of SOFR Revolving Loans.
"
SOFR RevolvingLoan
" shall mean a Revolving Facility Loan that bears interest at a rate based on
Adjusted Term SOFR, other than pursuant toclause (c) of the definition of
"ABR".
"
SOFR Term Loan
"shall mean a Term Loan that bears interest at a rate based on Adjusted Term
SOFR, other than pursuant to clause (c) of the definitionof "ABR".
"
Special Dividend
"shall have the meaning assigned to such term in the Fourth Amended and
Restated Credit Agreement.
"
Special Flood HazardArea
" shall have the meaning assigned to such term in Section 5.02(c).
"
Special PurposeSecuritization Subsidiary
" shall mean (i) a direct or indirect Subsidiary of the Borrower established
in connection witha Permitted Securitization Financing for the acquisition of
Securitization Assets or interests therein, and which is organized in a
manner(as determined by the Borrower in good faith) intended to reduce the
likelihood that it would be substantively consolidated with Holdings(prior to
a Qualified IPO), the Borrower or any of the Subsidiaries (other than Special
Purpose Securitization Subsidiaries) in the eventHoldings (prior to a
Qualified IPO), the Borrower or any such
69
Subsidiary becomes subject to a proceedingunder the U.S. Bankruptcy Code (or
other insolvency law) and (ii) any subsidiary of a Special Purpose
Securitization Subsidiary.
"
Specified RefinancingIndebtedness
" shall mean (i) as used in the definition of "2021 Revolving Facility
Maturity Date", any Indebtednessof the Borrower or any Subsidiary Loan Party
that Refinances the 2022 Notes, the 2023 Notes, the 2024 First Lien Notes or
the 2026 FirstLien Notes and (ii) as used in the definition of "Term B-1
Facility Maturity Date", any Indebtedness of the Borrower or anySubsidiary
Loan Party that Refinances the 2026 First Lien Notes, the 2027 First Lien
Notes, the 2028 Second Lien Notes or the 2029 FirstLien Notes (or, in each
case, previous Refinancings thereof constituting Specified Refinancing
Indebtedness).
"
Sponsors
"shall mean (i) one or more investment funds affiliated with Apollo Global
Management, Inc. and any of their respective Affiliates otherthan any
portfolio companies (collectively, the "
Apollo Sponsors
") and (ii) any person that forms a "group"(within the meaning of Rules 13d-3
and 13d-5 under the Exchange Act, or any successor provision) with the Apollo
Sponsors;
provided
that any Apollo Sponsor (x) owns a majority of the voting power and (y)
controls a majority of the Board of Directors of the Borrower.
"
Spot Rate
"shall mean, with respect to any currency, the rate determined by the
Administrative Agent or the applicable Issuing Bank, as applicable,to be the
rate quoted by the person acting in such capacity as the spot rate for the
purchase by such person of such currency with anothercurrency through its
principal foreign exchange trading office at approximately 11:00 a.m., Local
Time on the date three Business Daysprior to the date as of which the foreign
exchange computation is made or if such rate cannot be computed as of such
date such other dateas the Administrative Agent or such Issuing Bank shall
reasonably determine is appropriate under the circumstances;
provided
, thatthe Administrative Agent or such Issuing Bank may obtain such spot rate
from another financial institution designated by the AdministrativeAgent or
such Issuing Bank if the person acting in such capacity does not have as of
the date of determination a spot buying rate forany such currency.
"
Standby Lettersof Credit
" shall have the meaning assigned to such term in Section 2.05(a).
"
Subagent
"shall have the meaning assigned to such term in Section 8.02.
"
subsidiary
"shall mean, with respect to any person (herein referred to as the "parent"),
any corporation, partnership, association orother business entity (a) of which
securities or other ownership interests representing more than 50% of the
equity or more than50% of the ordinary voting power or more than 50% of the
general partnership interests are, at the time any determination is being
made,directly or indirectly, owned, Controlled or held, or (b) that is, at the
time any determination is made, otherwise Controlled, bythe parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"
Subsidiary
"shall mean, unless the context otherwise requires, a subsidiary of the
Borrower. Notwithstanding the foregoing (and except for purposesof the
definition of "Unrestricted Subsidiary" contained herein) an Unrestricted
Subsidiary shall be deemed not to be a Subsidiaryof the Borrower or any of its
Subsidiaries for purposes of this Agreement.
"
Subsidiary GuaranteeAgreement
" shall mean the Subsidiary Guarantee Agreement (First-Lien) dated as of the
Original Closing Date as may be amended,restated, supplemented or otherwise
modified from time to time, between each Subsidiary Loan Party and the
Collateral Agent.
70
"
Subsidiary LoanParty
" shall mean (a) each Wholly Owned Domestic Subsidiary of the Borrower that is
not an Excluded Subsidiary and (b) anyother Subsidiary of the Borrower that
may be designated by the Borrower (by way of delivering to the Collateral
Agent a supplement tothe Collateral Agreement and a supplement to the
Subsidiary Guarantee Agreement, in each case, duly executed by such
Subsidiary) in itssole discretion from time to time to be a guarantor in
respect of the Obligations and the obligations in respect of the Loan
Documents,whereupon such Subsidiary shall be obligated to comply with the
other requirements of Section 5.10(d) as if it were newly acquired.For the
avoidance of doubt, each Co-Borrower shall constitute a Subsidiary Loan Party
hereunder.
"
Subsidiary Redesignation
"shall have the meaning provided in the definition of "Unrestricted
Subsidiary" contained in this Section 1.01.
"
Successor Borrower
"shall have the meaning assigned to such term in Section 6.05(n).
"
Successor FirstLien Agent Agreement
" shall mean that certain Successor First Lien Agent Agreement dated as of
March 31, 2016 as may be amended,restated, supplemented or otherwise modified
from time to time, among the Borrower, Holdings, the Subsidiary Loan Parties
party thereto,the Administrative Agent, Credit Suisse AG, Cayman Islands
Branch, and the Lenders party thereto.
"
Swap Obligation
"shall mean, with respect to any Guarantor, any obligation to pay or perform
under any agreement, contract or transaction that constitutesa "swap" within
the meaning of Section 1a(47) of the Commodity Exchange Act.
"
Swingline Borrowing
"shall mean a Borrowing comprised of Swingline Loans.
"
Swingline BorrowingRequest
" shall mean a request by the Borrower or the applicable Co-Borrower
substantially in the form of Exhibit C-2 or suchother form as shall be
approved by the Swingline Lender.
"
Swingline Commitment
"shall mean, with respect to each Swingline Lender, the commitment of such
Swingline Lender to make Swingline Loans pursuant to Section2.04. The
aggregate amount of the Swingline Commitments with respect to the 2021
Revolving Facility Commitments as of the Eleventh IncrementalAssumption and
Amendment Agreement Effective Date is $100,000,000. The Swingline Commitment
is part of, and not in addition to, the 2021Revolving Facility Commitments.
"
Swingline Exposure
"shall mean at any time the aggregate principal amount of all outstanding
Swingline Borrowings at such time (calculated, in the case ofAlternate
Currency Loans, based on the Dollar Equivalent thereof). The Swingline
Exposure of any Revolving Facility Lender at any timeshall mean its applicable
Revolving Facility Percentage of the aggregate Swingline Exposure at such time.
"
Swingline Lender
"shall mean (a) the Administrative Agent, in its capacity as a lender of
Swingline Loans, and (b) each Revolving Facility Lender that shallhave become
a Swingline Lender hereunder as provided in Section 2.04(d), each in its
capacity as a lender of Swingline Loans hereunder.
"
Swingline Loans
"shall mean the swingline loans made to the Borrower or the applicable
Co-Borrower pursuant to Section 2.04.
"
Syndication Agents
"shall mean, collectively, Barclays Bank PLC, Deutsche Bank Securities Inc.,
Apollo Global Securities, LLC, Mizuho Bank, Ltd., RBC CapitalMarkets, LLC,
Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., MUFG Bank,
Ltd., BNP Paribas Securities Corp., CitizensBank, N.A., Fifth Third Bank,
National Association and ING Capital LLC.
71
"
Target
"shall mean The ADT Corporation, a Delaware corporation.
"
Taxes
"shall mean any and all present or future taxes, duties, levies, imposts,
assessments, deductions, withholdings or other similar chargesimposed by any
Governmental Authority, whether computed on a separate, consolidated, unitary,
combined or other basis and any interest,fines, penalties or additions to tax
with respect to the foregoing.
"
Tender Offer
"shall have the meaning assigned to the term "Debt Offer" in the Merger
Agreement.
"
Tenth Amended and RestatedCredit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Tenth IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement dated as of
the Tenth IncrementalAssumption and Amendment Agreement Effective Date, by and
among Holdings, the Borrower, the Subsidiary Loan Parties party thereto,
theLenders party thereto and the Administrative Agent.
"
Tenth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Term B-1 FacilityMaturity Date
" shall mean October 13, 2030;
provided
, (i) if, on the date that is 91 days prior to the scheduled maturitydate of
the 2026 First Lien Notes (the "
Early 2026 First Lien Notes Maturity Test Date
"), the aggregate principal amountof the 2026 First Lien Notes outstanding
(and not held by the Borrower or any Subsidiary) equals or exceeds
$1,000,000,000, the Term B-1Facility Maturity Date shall be the Early 2026
First Lien Notes Maturity Test Date, (ii) if, on the date that is 91 days
prior to thescheduled maturity date of the 2027 First Lien Notes (the "
Early 2027 First Lien Notes Maturity Test Date
"), the aggregateprincipal amount of the 2027 First Lien Notes outstanding
(and not held by the Borrower or any Subsidiary) equals or exceeds
$1,000,000,000,the Term B-1 Facility Maturity Date shall be the Early 2027
First Lien Notes Maturity Test Date, (iii) if, on the date that is 91
daysprior to the scheduled maturity date of the 2028 Second Lien Notes (the "
Early 2028 Second Lien Notes Maturity Test Date
"),the aggregate principal amount of the 2028 Second Lien Notes outstanding
(and not held by the Borrower or any Subsidiary) equals or exceeds$1,000,000,000
, the Term B-1 Facility Maturity Date shall be the Early 2028 Second Lien
Notes Maturity Test Date, (iv) if, on the datethat is 91 days prior to the
scheduled maturity date of the 2029 First Lien Notes (the "
Early 2029 First Lien Notes MaturityTest Date
"), the aggregate principal amount of the 2029 First Lien Notes outstanding
(and not held by the Borrower or any Subsidiary)equals or exceeds
$1,000,000,000, the Term B-1 Facility Maturity Date shall be the Early 2029
First Lien Notes Maturity Test Date and(v) if, on the date that is 91 days
prior to the scheduled maturity date of any Specified Refinancing Indebtedness
(with respect to eachand any such Specified Refinancing Indebtedness, the "
Early Specified Refinancing Indebtedness Maturity Test Date
"),the aggregate principal amount of such Specified Refinancing Indebtedness
outstanding (and not held by the Borrower or any Subsidiary)equals or exceeds
$1,000,000,000, the Term B-1 Facility Maturity Date shall be the Early
Specified Refinancing Indebtedness Maturity TestDate.
"
Term B-1 Loan InstallmentDate
" shall have the meaning assigned to such term in Section 2.10(a)(i).
"
Term B-1 Loans
"shall mean (a) the 2024 Refinancing Term B-1 Loans made by certain Lenders to
the Borrower and the applicable Co-Borrower on the FourteenthIncremental
Assumption and Amendment Agreement Effective Date pursuant to the Fourteenth
Incremental Assumption and Amendment Agreement,(b) the Incremental Term B-1
Loans deemed made by the Incremental Term B-1
72
Lenders to the Borrower and the applicableCo-Borrower on the Fifteenth
Incremental Assumption and Amendment Agreement Effective Date pursuant to the
Fifteenth Incremental Assumptionand Amendment Agreement, (c) the May 2024
Incremental Term B-1 Loans made by the May 2024 Incremental Term B-1 Lenders
to the Borrowerand the applicable Co-Borrower on the Sixteenth Incremental
Assumption and Amendment Agreement Effective Date pursuant to the
SixteenthIncremental Assumption and Amendment Agreement and (d) any
Incremental Term Loans in the form of Term B-1 Loans made by the IncrementalTerm
Lenders to the Borrower or any Co-Borrower after the Sixteenth Incremental
Assumption and Amendment Agreement Effective Date pursuantto Section 2.01(e).
The aggregate principal amount of Term B-1 Loans outstanding as of the
Sixteenth Incremental Assumption and AmendmentAgreement Effective Date is
$1,989,062,500.
"
Term Borrowing
"shall mean any Borrowing comprised of Term Loans.
"
Term Facility
"shall mean the Term Loans of any Class.
"
Term Facility Commitment
"shall mean the commitment of a Lender to make Term Loans, including Term B-1
Loans and/or Other Term Loans.
"
Term Facility MaturityDate
" shall mean, as the context may require, (a) with respect to the Term B-1
Loans, the Term B-1 Facility Maturity Dateand (b) with respect to any other
Class of Term Loans, the maturity dates specified therefor in the applicable
Incremental AssumptionAgreement.
"
Term Loan InstallmentDate
" shall mean any Term B-1 Loan Installment Date or Incremental Term Loan
Installment Date.
"
Term Loans
"shall mean the Term B-1 Loans and/or Incremental Term Loans.
"
Term SOFR
"shall mean,
(a) forany calculation with respect to a SOFR Loan, the Term SOFR
Reference Rate for a tenor comparable to the applicable Interest Period onthe
day (such day, the "
Periodic Term SOFR Determination Day
") that is two (2) U.S. Government Securities BusinessDays prior to the first
day of such Interest Period, as such rate is published by the Term SOFR
Administrator;
provided
, however,that if as of 5:00 p.m. (New York City time) on any Periodic Term
SOFR Determination Day the Term SOFR Reference Rate for the applicabletenor
has not been published by the Term SOFR Administrator and a Benchmark
Replacement Date with respect to the Term SOFR Reference Ratehas not occurred,
then Term SOFR will be the Term SOFR Reference Rate for such tenor as
published by the Term SOFR Administrator on thefirst preceding U.S. Government
Securities Business Day for which such Term SOFR Reference Rate for such tenor
was published by the TermSOFR Administrator so long as such first preceding
U.S. Government Securities Business Day is not more than three (3) U.S.
GovernmentSecurities Business Days prior to such Periodic Term SOFR
Determination Day, and
(b) forany calculation with respect to an ABR Loan on any day, the Term
SOFR Reference Rate for a tenor of one month on the day (such day, the"
ABR Term SOFR Determination Day
") that is two (2) U.S. Government Securities Business Days prior to such day,
as suchrate is published by the Term SOFR Administrator;
provided
, however, that if as of 5:00 p.m. (New York City time) on any ABR TermSOFR
Determination Day the Term SOFR Reference Rate for the applicable tenor has
not been published by the Term SOFR Administrator anda Benchmark Replacement
Date with respect to the Term SOFR Reference Rate has not occurred, then Term
SOFR will be the Term SOFR ReferenceRate for such tenor as published by the
Term SOFR Administrator on the first preceding U.S. Government Securities
Business Day for whichsuch Term SOFR Reference Rate for such tenor was
published by the Term SOFR
73
Administrator so long as such first precedingU.S. Government Securities
Business Day is not more than three (3) U.S. Government Securities Business
Days prior to such ABR Term SOFRDetermination Day.
"
Term SOFR Adjustment
"shall mean, for any calculation with respect to a SOFR Revolving Loan, (i)
0.11448% (11.448 basis points) for an Interest Period of one-month'sduration,
(ii) 0.26161% (26.161 basis points) for an Interest Period of three-month's
duration and (iii) 0.42826% (42.826 basispoints) for an Interest Period of
six-months' duration.
"
Term SOFR Administrator
"shall mean CME Group Benchmark Administration Limited (CBA) (or a successor
administrator of the Term SOFR Reference Rate selected bythe Administrative
Agent in its reasonable discretion).
"
Term SOFR ReferenceRate
" shall mean the forward looking term rate based on SOFR.
"
Term Yield Differential
"shall have the meaning assigned to such term in Section 2.21(b)(vii).
"
Termination Date
"shall mean the date on which (a) all Commitments shall have been terminated,
(b) the principal of and interest on each Loan,all Fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full (other
than in respect of contingentindemnification and expense reimbursement claims
not then due) and (c) all Letters of Credit (other than those that have been
CashCollateralized) have been cancelled or have expired and all amounts drawn
or paid thereunder have been reimbursed in full.
"
Test Period
"shall mean, on any date of determination, the period of four consecutive
fiscal quarters of the Borrower then most recently ended (takenas one
accounting period) for which financial statements have been (or were required
to be) delivered pursuant to Section 5.04(a)or 5.04(b);
provided
that prior to the first date financial statements have been delivered pursuant
to Section 5.04(a) or 5.04(b),the Test Period in effect shall be the four
fiscal quarter period ending March 31, 2016.
"
Testing Condition
"shall be satisfied at any time if as of such time (i) the sum of without
duplication (x) the aggregate principal amount of outstandingRevolving
Facility Loans and Swingline Loans at such time and (y) the aggregate stated
amount of drawn Letters of Credit and undrawn Lettersof Credit (other than
those that have been Cash Collateralized in accordance with Section 2.05(j))
outstanding at such time less $75,000,000(but no less than $0), in each case,
calculated, in the case of Alternate Currency Loans, based on the Dollar
Equivalent thereof, exceeds(ii) an amount equal to 30% of the aggregate amount
of the Revolving Facility Commitments at such time.
"
Third Amended andRestated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Third AmendmentAgreement
" shall mean the Amendment Agreement No. 3 dated as of the Third Amendment
Agreement Effective Date by and among Holdings,the Borrower, the Subsidiary
Loan Parties party thereto, the Lenders party thereto and the Administrative
Agent.
"
Third AmendmentAgreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Third Party Funds
"shall mean any segregated accounts or funds, or any portion thereof, received
by Borrower or any of its Subsidiaries as agent on behalfof third parties in
accordance with a written agreement that imposes a duty upon Borrower or one
or more of its Subsidiaries to collectand remit those funds to such third
parties.
74
"
Thirteenth Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Thirteenth IncrementalAssumption and Amendment Agreement
" shall mean the Incremental Assumption and Amendment Agreement No. 13, dated
as of the ThirteenthIncremental Assumption and Amendment Agreement Effective
Date, by and among Holdings, the Borrower, ADTSC, the Subsidiary Loan
Partiesparty thereto, the Lenders party thereto and the Administrative Agent.
"
Thirteenth IncrementalAssumption and Amendment Agreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Trade Letters ofCredit
" shall have the meaning assigned to such term in Section 2.05(a).
"
Transaction Documents
"shall mean the Merger Agreement, the Loan Documents and the Second Priority
Senior Secured Notes Documents.
"
Transaction Expenses
"shall mean any fees or expenses incurred or paid by the Borrower or any of
its Subsidiaries or any of their Affiliates in connection withthe ADT
Transactions, the Transaction Documents and the transactions contemplated
hereby and thereby.
"
Twelfth Amendedand Restated Credit Agreement
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Twelfth AmendmentAgreement
" shall mean the Amendment Agreement No. 12 dated as of May 10, 2023 and
effective as of the Twelfth Amendment AgreementEffective Date by and between
the Borrower and the Administrative Agent.
"
Twelfth AmendmentAgreement Effective Date
" shall have the meaning assigned to such term in the recitals of this
Agreement.
"
Type
"shall mean, when used in respect of any Loan or Borrowing, the Rate by
reference to which interest on such Loan or on the Loans comprisingsuch
Borrowing is determined. For purposes hereof, the term "
Rate
" shall include the Adjusted Term SOFR and the ABR.
"
UK Financial Institution
"shall mean any BRRD Undertaking (as such term is defined under the PRA
Rulebook (as amended from time to time) promulgated by the UnitedKingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of
the FCA Handbook (as amended from time to time) promulgatedby the United
Kingdom Financial Conduct Authority, which includes certain credit
institutions and investment firms, and certain affiliatesof such credit
institutions or investment firms.
"
UK Resolution Authority
"shall mean the Bank of England or any other public administrative authority
having responsibility for the resolution of any UK FinancialInstitution.
"
Unadjusted BenchmarkReplacement
" shall mean the applicable Benchmark Replacement excluding the related
Benchmark Replacement Adjustment.
"
Uniform CommercialCode
" shall mean the Uniform Commercial Code as the same may from time to time be
in effect in the State of New York orthe Uniform Commercial Code (or similar
code or statute) of another jurisdiction, to the extent it may be required to
apply to any itemor items of Collateral.
"
Unreimbursed Amount
"shall have the meaning assigned to such term in Section 2.05(e).
75
"
Unrestricted Cash
"shall mean cash or Permitted Investments of the Borrower or any of its
Subsidiaries that would not appear as "restricted"on a consolidated balance
sheet of the Borrower or any of its Subsidiaries.
"
Unrestricted Subsidiary
"shall mean (1) any Subsidiary of the Borrower identified on Schedule 1.01(D),
(2) any other Subsidiary of the Borrower,whether now owned or acquired or
created after the Closing Date, that is designated by the Borrower as an
Unrestricted Subsidiary hereunderby written notice to the Administrative Agent;
provided
, that the Borrower shall only be permitted to so designate a new
UnrestrictedSubsidiary after the Closing Date so long as (a) no Default or
Event of Default has occurred and is continuing or would result therefrom,(b)
immediately after giving effect to such designation, the Borrower shall be in
Pro Forma Compliance with the Financial Covenantas of the last day of the then
most recently ended Test Period, (c) such Unrestricted Subsidiary shall be
capitalized (to the extentcapitalized by the Borrower or any of its
Subsidiaries) through Investments as permitted by, and in compliance with,
Section 6.04,and any prior or concurrent Investments in such Subsidiary by the
Borrower or any of its Subsidiaries shall be deemed to have been madeunder
Section 6.04 and (d) without duplication of clause (c), any net assets owned
by such Unrestricted Subsidiary at thetime of the initial designation thereof
shall be treated as Investments pursuant to Section 6.04; and (3) any
subsidiary ofan Unrestricted Subsidiary. The Borrower may designate any
Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement
(each,a "
Subsidiary Redesignation
");
provided
, that (i) no Default or Event of Default has occurred and is continuingor
would result therefrom, (ii) immediately after giving effect to such
Subsidiary Redesignation, the Borrower shall be in Pro Forma Compliancewith
the Financial Covenant as of the last day of the then most recently ended Test
Period and (iii) the Borrower shall have deliveredto the Administrative Agent
an officer's certificate executed by a Responsible Officer of the Borrower,
certifying to the best ofsuch officer's knowledge, compliance with the
requirements of preceding clauses (i) and (ii).
"
U.S. BankruptcyCode
" shall mean Title 11 of the United States Code, as amended, or any similar
federal or state law for the relief of debtors.
"
U.S. GovernmentSecurities Business Day
" shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on
which the Securities Industryand Financial Markets Association recommends that
the fixed income departments of its members be closed for the entire day for
purposesof trading in United States government securities.
"
U.S. Lender
"shall mean any Lender other than a Foreign Lender.
"
USA PATRIOT Act
"shall mean the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001(Title III of
Pub. L. No. 107 56 (signed into law October 26, 2001)).
"
Voting Stock
"shall mean, with respect to any person, such person's Equity Interests having
the right to vote for the election of directors ofsuch person under ordinary
circumstances.
"
Weighted AverageLife to Maturity
" shall mean, when applied to any Indebtedness at any date, the number of
years obtained by
dividing
:(a) the sum of the products obtained by multiplying (i) the amount of each
then remaining installment, sinking fund, serialmaturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (ii) the number ofyears (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment;
by
(b) thethen outstanding principal amount of such Indebtedness.
"
Wholly Owned DomesticSubsidiary
" shall mean a Wholly Owned Subsidiary that is also a Domestic Subsidiary.
76
"
Wholly Owned Subsidiary
"of any person shall mean a subsidiary of such person, all of the Equity
Interests of which (other than directors' qualifying sharesor nominee or other
similar shares required pursuant to applicable law) are owned by such person
or another Wholly Owned Subsidiary ofsuch person. Unless the context otherwise
requires, "Wholly Owned Subsidiary" shall mean a Subsidiary of the Borrower
thatis a Wholly Owned Subsidiary of the Borrower.
"
Withdrawal Liability
"shall mean liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such termsare defined in
Part I of Subtitle E of Title IV of ERISA.
"
Working Capital
"shall mean, with respect to the Borrower and the Subsidiaries on a
consolidated basis at any date of determination, Current Assets atsuch date of
determination
minus
Current Liabilities at such date of determination;
provided
, that, for purposes of calculatingExcess Cash Flow, increases or decreases in
Working Capital shall be calculated without regard to any changes in Current
Assets or CurrentLiabilities as a result of (a) any reclassification in
accordance with GAAP of assets or liabilities, as applicable, between
currentand noncurrent or (b) the effects of purchase accounting.
"
Write-Down andConversion Powers
" shall mean, (a) with respect to any EEA Resolution Authority, the write-down
and conversion powers of suchEEA Resolution Authority from time to time under
the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversionpowers are described in the EU Bail-In Legislation
Schedule and (b) with respect to the United Kingdom, any powers of the
applicable ResolutionAuthority under the Bail-In Legislation to cancel,
reduce, modify or change the form of a liability of any UK Financial
Institution orany contract or instrument under which that liability arises, to
convert all or part of that liability into shares, securities or obligationsof
that person or any other person, to provide that any such contract or
instrument is to have effect as if a right had been exercisedunder it or to
suspend any obligation in respect of that liability or any of the powers under
that Bail-In Legislation that are relatedto or ancillary to any of those
powers.
Section 1.02
Terms Generally
. The definitions set forth or referred to in Section 1.01 shall apply equally
to both the singularand plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminineand neuter forms. The words "include," "includes" and "including"
shall be deemed to be followed bythe phrase "without limitation." All
references herein to Articles, Sections, Exhibits and Schedules shall be
deemedreferences to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require.Except as otherwise
expressly provided herein, any reference in this Agreement to any Loan
Document shall mean such document as amended,restated, supplemented or
otherwise modified from time to time. Except as otherwise expressly provided
herein, all terms of an accountingor financial nature shall be construed in
accordance with GAAP, as in effect from time to time;
provided
, that, if the Borrowernotifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
changeoccurring after the Closing Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agentnotifies the
Borrower that the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whetherany such notice is given before
or after such change in GAAP or in the application thereof, then such
provision shall be interpreted onthe basis of GAAP as in effect and applied
immediately before such change shall have become effective until such notice
shall have beenwithdrawn or such provision amended in accordance herewith.
Notwithstanding any changes in GAAP after the Closing Date, any lease of
theBorrower or the Subsidiaries, or of a special purpose or other entity not
consolidated with the Borrower and its Subsidiaries at the timeof its
incurrence of such lease, that would be characterized as an operating lease
under GAAP in effect on the Closing Date (whether suchlease is entered into
before or after the Closing Date) shall not constitute Indebtedness or a
Capitalized Lease Obligation of the Borroweror any Subsidiary under this
Agreement or any other Loan Document as a result of such changes in GAAP.
Notwithstanding any other
77
provision contained herein, all terms of anaccounting or financial nature used
herein shall be construed, and all computations of amounts and ratios referred
to herein shall bemade, without giving effect to any election under FASB
Accounting Standards Codification 805, 810 or 825 (or any other part of FASB
AccountingStandards Codification having a similar result or effect), to value
any Indebtedness at "fair value."
Section 1.03
Effectuation of Transactions
. Each of the representations and warranties of the Borrower contained in this
Agreement (andall corresponding definitions) are made after giving effect to
the ADT Transactions, unless the context otherwise requires.
Section 1.04
Exchange Rates; Currency Equivalents
. (a) The Administrative Agent shalldetermine the Spot Rate as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of
Alternate Currency Lettersof Credit and Alternate Currency Loans. Such Spot
Rate shall become effective as of such Revaluation Date and shall be the Spot
Rate employedin converting any amounts between the Dollars and each Alternate
Currency until the next Revaluation Date to occur. Except for purposesof
financial statements delivered by Loan Parties hereunder or calculating
financial ratios hereunder or except as otherwise providedherein, the
applicable amount of any currency (other than Dollars) for purposes of the
Loan Documents shall be such Dollar Equivalentamount as determined by the
Administrative Agent in accordance with this Agreement. No Default or Event of
Default shall arise as a resultof any limitation or threshold set forth in
Dollars in Article VI or clause (f) or (j) of Section 7.01 being exceeded
solelyas a result of changes in currency exchange rates from those rates
applicable on the first day of the fiscal quarter in which such determinationocc
urs or in respect of which such determination is being made.
(b)
Wherever in this Agreement in connection with a Borrowing, conversion,
continuation or prepayment of a Loan or the issuance, amendmentor extension of
a Letter of Credit, an amount, such as a required minimum or multiple amount,
is expressed in Dollars, but such Borrowing,Loan or Letter of Credit is
denominated in an Alternate Currency, such amount shall be the Alternate
Currency Equivalent of such Dollaramount (rounded to the nearest unit of such
Alternate Currency, with 0.5 of a unit being rounded upward), as determined by
the AdministrativeAgent or the applicable Issuing Bank, as applicable.
Section 1.05
Additional Alternate Currencies for Loans
.
(a)
The Borrower or any Co-Borrower may from time to time request that Revolving
Facility Loans be made in a currency other than Dollars;
provided
that such requested currency is a lawful currency (other than Dollars) that is
readily available and freely transferableand convertible into Dollars. Such
request shall be subject to the approval of the Administrative Agent.
Notwithstanding the foregoing,the Borrower and the Co-Borrowers may only
request ABR Loans to be made in Dollars.
(b)
Any such request shall be made to the Administrative Agent not later than
11:00 a.m., 20 Business Days prior to the date of thedesired Credit Event (or
such other time or date as may be agreed by the Administrative Agent, in its
sole discretion). The AdministrativeAgent shall promptly notify each Revolving
Facility Lender thereof. Each Revolving Facility Lender shall notify the
Administrative Agent,not later than 11:00 a.m., 10 Business Days after receipt
of such request whether it consents, in its sole discretion, to the making
ofRevolving Facility Loans in such requested currency.
(c)
Any failure by a Revolving Facility Lender to respond to such request within
the time period specified in the preceding sentenceshall be deemed to be a
refusal by such Revolving Facility Lender to permit Revolving Facility Loans
to be made in such requested currency.If the
78
Administrative Agent and all the RevolvingFacility Lenders consent to making
Revolving Facility Loans in such requested currency, the Administrative Agent
shall so notify the Borrowerand such currency shall thereupon be deemed for
all purposes to be an Alternate Currency hereunder for purposes of any
Borrowings of RevolvingFacility Loans. If the Administrative Agent shall fail
to obtain consent to any request for an additional currency under this
Section1.05, the Administrative Agent shall promptly so notify the Borrower.
Section 1.06
Change of Currency
.
(a)
Each obligation of the Borrower or any Co-Borrower to make a payment
denominated in the national currency unit of any member stateof the European
Union that adopts the Euro as its lawful currency after the Closing Date shall
be redenominated into Euro at the timeof such adoption (in accordance with the
EMU Legislation). If, in relation to the currency of any such member state,
the basis of accrualof interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the
Londoninterbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such conventionor practice
with effect from the date on which such member state adopts the Euro as its
lawful currency;
provided
that if any Borrowingin the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect tosuch Borrowing, at the end of the then current Interest Period.
(b)
Each provision of this Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent may fromtime to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevantmarket conventions or practices relating to the
Euro.
(c)
Each provision of this Agreement also shall be subject to such reasonable
changes of construction as the Administrative Agent mayfrom time to time
specify to be appropriate to reflect a change in currency of any other country
and any relevant market conventions orpractices relating to the change in
currency.
Section 1.07
Timing of Payment or Performance
. Except as otherwise expressly provided herein, when the payment of any
obligation or theperformance of any covenant, duty or obligation is stated to
be due or performance required on a day which is not a Business Day, thedate
of such payment or performance shall extend to the immediately succeeding
Business Day.
Section 1.08
Times of Day
. Unless otherwise specified herein, all references herein to times of day
shall be references to New YorkCity time (daylight or standard, as applicable).
Section 1.09
Co-Borrowers; The Administrative Borrower
.(a)The Borrower and each Co-Borrower (solely for purposes of this Section
1.09(other than clause (d) below), each a "
Borrower
" and collectively the "
Borrowers
") accept jointand several liability hereunder with respect to all Obligations
with respect to the Revolving Facility and the Term B-1 Loans, as
applicable,in consideration of the financial accommodation provided or to be
provided by the Administrative Agent and the Lenders under this Agreementand
the other Loan Documents, for the mutual benefit, directly and indirectly, of
each Borrower and in consideration of the undertakingsof each Borrower to
accept joint and several liability for such obligations of each other such
person. On or after (x) the Eleventh IncrementalAssumption and Amendment
Agreement Effective Date, Revolving Facility Loans may be allocated between
the Borrower and any Co-Borrowerby the Borrower in its sole discretion so long
as the Borrower will continue to remain a Borrower hereunder or become a
Guarantor and(y) the Thirteenth Incremental Assumption and Amendment Agreement
Effective Date, Term B-1 Loans may be allocated between the Borrowerand any
79
Co-Borrower by the Borrower in its sole discretionso long as the Borrower will
continue to remain a Borrower hereunder or become a Guarantor.
(b)
Each Borrower's obligations with respect to Revolving Facility Loans and Term
B-1 Loans made or allocated to it, and eachBorrower's obligations arising as a
result of the joint and several liability of such Borrower hereunder, with
respect to Obligationswith respect to the Revolving Facility and Term B-1
Loans owing by the other Borrower hereunder, shall be separate and distinct
obligations,but all such obligations shall be primary obligations of each
Borrower.
(c)
Upon the occurrence and during the continuation of any Event of Default, the
Administrative Agent and the Revolving Facility Lendersand/or Lenders of Term
B-1 Loans, as applicable, may proceed directly and at once, without notice,
against any Borrower to collect andrecover the full amount, or any portion of,
the Obligations with respect to the Revolving Facility or Term B-1 Loans, as
applicable, withoutfirst proceeding against any other Borrower or any other
person, or against any security or collateral for the Obligations with
respectto the Revolving Facility or Term B-1 Loans, as applicable. Each
Borrower waives all suretyship defenses and consents and agrees thatthe
Administrative Agent and the Lenders shall be under no obligation to marshal
any assets in favor of any Borrower or against or inpayment of any or all of
the Obligations with respect to the Revolving Facility or the Term B-1 Loans.
(d)
Each Co-Borrower hereby appoints the Borrower as the administrative borrower
hereunder, and the Borrower shall act under this Agreementand the other Loan
Documents as the agent, attorney-in-fact and legal representative of such
Co-Borrower for all purposes, including receivingaccount statements, giving
and receiving all notices and consents hereunder or under any other Loan
Documents, taking all other actions(including in respect of compliance with
covenants and certificates) and communications to such Co-Borrower from the
Administrative Agentor any Lender. The Administrative Agent, the Revolving
Facility Lenders and the Lenders of Term B-1 Loans may rely, and shall be
fullyprotected in relying, on any certificate, report, information or any
notice or communication made or given by the Borrower, whether inits own name
or on behalf of any Co-Borrower, and neither the Administrative Agent nor any
Revolving Facility Lender nor any Lender ofTerm B-1 Loans shall have any
obligation to make any inquiry or request any confirmation from or on behalf
of any Co-Borrower as to thebinding effect on it of any such notice or request.
Article II
The Credits
Section 2.01
Commitments
. Subject to the terms and conditions set forth herein:
(a)
on the Fourteenth Incremental Assumption and Amendment Agreement Effective
Date, certain Lenders agreed to make 2024 RefinancingTerm B-1 Loans in Dollars
to the Borrower and the applicable Co-Borrower in an aggregate principal
amount equal to $1,371,562,500,
(b)
on the Fifteenth Incremental Assumption and Amendment Agreement Effective
Date, pursuant to the terms of the Fifteenth IncrementalAssumption and
Amendment Agreement, the Incremental Term B-1 Lenders were deemed to make
Incremental Term B-1 Loans in Dollars to theBorrower and the applicable
Co-Borrower in an aggregate principal amount equal to $143,200,320.55,
(c)
on the Sixteenth Incremental Assumption and Amendment Agreement Effective
Date, pursuant to the terms of the Sixteenth IncrementalAssumption and
Amendment
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Agreement, the May 2024 IncrementalTerm B-1 Lenders agreed to make May 2024
Incremental Term B-1 Loans in Dollars to the Borrower and the applicable
Co-Borrower in an aggregateprincipal amount equal to $474,299,679.45,
(d)
each Lender agrees to make Revolving Facility Loans of a Class in Dollars (or,
subject to Section 1.05, in an Alternate Currency)to the Borrower and each
applicable Co-Borrower from time to time during the Availability Period in an
aggregate principal amount thatwill not result in (i) such Lender's Revolving
Facility Credit Exposure of such Class exceeding such Lender's RevolvingFacility
Commitment of such Class or (ii) the Revolving Facility Credit Exposure of
such Class exceeding the total Revolving FacilityCommitments of such Class.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower and eachCo-Borrower may borrow, prepay and reborrow
Revolving Facility Loans,
(e)
each Lender having an Incremental Term Loan Commitment (other than a May 2024
Incremental Term B-1 Loan Commitment) agrees, subjectto the terms and
conditions set forth in the applicable Incremental Assumption Agreement, to
make Incremental Term Loans to the Borrowerand each applicable Co-Borrower
after the Ninth Incremental Assumption and Amendment Agreement Effective Date,
in an aggregate principalamount not to exceed its Incremental Term Loan
Commitment,
(f)
each Lender having an Incremental Revolving Facility Commitment agrees,
subject to the terms and conditions set forth in the applicableIncremental
Assumption Agreement, to make Incremental Revolving Loans to the Borrower
and/or any Co-Borrower, in an aggregate principalamount not to exceed its
Incremental Revolving Facility Commitment, and
(g)
amounts borrowed under Section 2.01(a), (b), (c) or (e) that are repaid or
prepaid may not be reborrowed.
From and after the SixteenthIncremental Assumption and Amendment Agreement
Effective Date, the 2024 Refinancing Term B-1 Loans, the Incremental Term B-1
Loans andthe May 2024 Incremental Term B-1 Loans shall be treated as a single
"Class" and have the same terms and conditions for allpurposes of this
Agreement and the other Loan Documents, including all scheduled, optional and
mandatory prepayments.
Section 2.02
Loans and Borrowings
. (a) Each Loan shall be made as part of aBorrowing consisting of Loans under
the same Facility and of the same Type made by the Lenders ratably in
accordance with their respectiveCommitments under the applicable Facility (or,
in the case of Swingline Loans, in accordance with their respective Swingline
Commitments);
provided
,
however
, that Revolving Facility Loans of any Class shall be made by the Revolving
Facility Lenders of such Classratably in accordance with their respective
Revolving Facility Percentages on the date such Loans are made hereunder. The
failure of anyLender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder;
provided
, thatthe Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b)
Subject to Section 2.14, each Borrowing (other than a Swingline Borrowing)
shall be comprised entirely of ABR Loans or SOFRLoans as the Borrower or the
applicable Co-Borrower may request in accordance herewith. Each Swingline
Borrowing shall be an ABR Borrowing.Each Lender at its option may make any ABR
Loan or SOFR Loan by causing any domestic or foreign branch or Affiliate of
such Lender tomake such Loan;
provided
, that any exercise of such option shall not affect the obligation of the
Borrower or any Co-Borrower torepay such Loan in accordance with the terms of
this Agreement and such Lender shall not be entitled to any amounts payable
under Section 2.15or 2.17 solely in respect of increased costs resulting from
such exercise and existing at the time of such exercise.
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(c)
At the commencement of each Interest Period for any SOFR Revolving Facility
Borrowing, such Borrowing shall be in an aggregateamount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum. At
the time that each ABR RevolvingFacility Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of the Borrowing
Multiple andnot less than the Borrowing Minimum;
provided
, that an ABR Revolving Facility Borrowing may be in an aggregate amount that
is equalto the entire unused available balance of the Revolving Facility
Commitments or that is required to finance the reimbursement of an
L/CDisbursement as contemplated by Section 2.05(e). Each Swingline Borrowing
shall be in an amount that is an integral multiple of theBorrowing Multiple
and not less than the Borrowing Minimum. Borrowings of more than one Type may
be outstanding at the same time;
provided
,
however
, that neither the Borrower nor any Co-Borrower shall be entitled to request
any Borrowing that, if made, would result in morethan (i) five (with an
additional two for each new Class, up to a maximum of 10) SOFR Borrowings
outstanding under all Term Facilitiesat any time and (ii) five (with an
additional two for each new Class, up to a maximum of 10) SOFR Borrowings
outstanding under allRevolving Facilities at any time. Borrowings having
different Interest Periods, regardless of whether they commence on the same
date,shall be considered separate Borrowings.
(d)
Notwithstanding any other provision of this Agreement, neither the Borrower
nor any Co-Borrower shall be entitled to request, orto elect to convert or
continue, any Borrowing of any Class if the Interest Period requested with
respect thereto would end after theRevolving Facility Maturity Date or the
Term Facility Maturity Date for such Class, as applicable.
Section 2.03
Requests for Borrowings
. To request a Revolving Facility Borrowing and/or a Term Borrowing, the
Borrower or the applicableCo-Borrower shall notify the Administrative Agent of
such request in writing (a) in the case of a SOFR Borrowing, not later
than12:00 noon, Local Time, three U.S. Government Securities Business Days
before the date of the proposed Borrowing or (b) in thecase of an ABR
Borrowing, not later than 10:00 a.m. Local Time, on the Business Day of the
proposed Borrowing;
provided
, that (i)any such notice of an ABR Revolving Facility Borrowing to finance
the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e)may
be given not later than 12:00 noon, Local Time, on the date of the proposed
Borrowing, (ii) to request a SOFR Borrowing on theSixteenth Incremental
Assumption and Amendment Agreement Effective Date, the Borrower and/or the
applicable Co-Borrower shall notify theAdministrative Agent of such request in
writing no later than 12:00 noon, Local Time, one U.S. Government Securities
Business Day priorto the Sixteenth Incremental Assumption and Amendment
Agreement Effective Date and (iii) to request an ABR Borrowing on the
SixteenthIncremental Assumption and Amendment Agreement Effective Date, the
Borrower and/or the applicable Co-Borrower shall notify the AdministrativeAgent
of such request in writing no later than 12:00 noon, Local Time, one Business
Day prior to the Sixteenth Incremental Assumptionand Amendment Agreement
Effective Date. Each such Borrowing Request shall be irrevocable. Each such
written Borrowing Request shall specifythe following information in compliance
with Section 2.02:
(i)
whether such Borrowing is to be a Borrowing of Term B-1 Loans (and whether
2024 Refinancing Term B-1 Loans, Incremental Term B-1Loans or May 2024
Incremental Term B-1 Loans), Revolving Facility Loans, Refinancing Term Loans,
Other Term Loans, Other Revolving Loansor Replacement Revolving Loans, as
applicable;
(ii)
the aggregate amount of the requested Borrowing;
(iii)
the date of such Borrowing, which shall be a Business Day;
(iv)
whether such Borrowing is to be an ABR Borrowing or a SOFR Borrowing;
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(v)
in the case of a SOFR Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated bythe definition of the term
"Interest Period";
(vi)
in the case of a Revolving Facility Borrowing, the currency in which such
Borrowing is to be denominated (which shall be Dollarsor an Alternate
Currency);
(vii)
the location and number of the Borrower's or the Co-Borrower's account to
which funds are to be disbursed; and
(viii)
with respect to Revolving Facility Borrowings and Borrowings of Term B-1
Loans, the identity of the Borrower and/or the applicableCo-Borrower in
respect of such Borrowing.
If no election as to the currency of any RevolvingFacility Borrowing is made,
then the requested Borrowing shall be made in Dollars. If no election as to
the Type of Borrowing is specified,then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any
requested SOFR Borrowing,then the Borrower or the applicable Co-Borrower shall
be deemed to have selected an Interest Period of one month's duration
(exceptin the case of the initial Interest Period of the 2024 Refinancing Term
B-1 Loans, the Incremental Term B-1 Loans and the May 2024 IncrementalTerm B-1
Loans, which shall be determined in accordance with the definition of
"Interest Period"). Promptly following receiptof a Borrowing Request in
accordance with this Section 2.03, the Administrative Agent shall advise each
Lender of the details thereofand of the amount of such Lender's Loan to be
made as part of the requested Borrowing.
Section 2.04
Swingline Loans
. (a) Subject to the terms and conditions set forth herein,the Swingline
Lender agrees to make Swingline Loans to the Borrower and the Co-Borrowers
from time to time during the Availability Period,in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of outstandingSwingline Loans (calculated, in the case of
Alternate Currency Loans, based on the Dollar Equivalent thereof) exceeding
the SwinglineCommitment or (ii) the Revolving Facility Credit Exposure of the
applicable Class exceeding the total Revolving Facility Commitmentsof such
Class;
provided
, that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding SwinglineBorrowing. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower and the
Co-Borrowers mayborrow, prepay and reborrow Swingline Loans.
(b)
To request a Swingline Borrowing, the Borrower or the applicable Co-Borrower
shall notify the Administrative Agent and the SwinglineLender of such request
in writing, not later than 12:00 p.m., Local Time, on the day of a proposed
Swingline Borrowing. Each such noticeand Swingline Borrowing Request shall be
irrevocable and shall specify (i) the requested date of such Swingline
Borrowing (whichshall be a Business Day) and (ii) the amount of the requested
Swingline Borrowing. The Swingline Lender shall consult with the AdministrativeA
gent as to whether the making of the Swingline Loan is in accordance with the
terms of this Agreement prior to the Swingline Lender fundingsuch Swingline
Loan. The Swingline Lender shall make each Swingline Loan on the proposed date
thereof by wire transfer of immediatelyavailable funds to the account of the
Borrower or the applicable Co-Borrower (or, in the case of a Swingline
Borrowing made to financethe reimbursement of an L/C Disbursement as provided
in Section 2.05(e), by remittance to the applicable Issuing Bank).
(c)
The Swingline Lender may by written notice given to the Administrative Agent
not later than 10:00 a.m., Local Time, on any BusinessDay require the
Revolving Facility Lenders of the applicable Class to acquire participations
on such Business Day in all or a portionof the outstanding Swingline Loans
made by it. Such notice shall specify the aggregate amount of such Swingline
Loans in
83
which the Revolving Facility Lenders willparticipate. Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each such
Lender, specifying insuch notice such Revolving Facility Lender's applicable
Revolving Facility Percentage of such Swingline Loan or Loans. Each
RevolvingFacility Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agentfor the
account of the Swingline Lender, such Revolving Facility Lender's applicable
Revolving Facility Percentage of such SwinglineLoan or Loans. Each Revolving
Facility Lender acknowledges and agrees that its respective obligation to
acquire participations in SwinglineLoans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including theoccurrence and continuance of a Default or Event of
Default or reduction or termination of the Commitments, and that each such
paymentshall be made without any offset, abatement, withholding or reduction
whatsoever. Each Revolving Facility Lender shall comply with itsobligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 withrespect to Loans made by such
Revolving Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligationsof the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
RevolvingFacility Lenders. The Administrative Agent shall notify the Borrower
of any participations in any Swingline Loan acquired pursuant tothis paragraph
(c), and thereafter payments in respect of such Swingline Loan shall be made
to the Administrative Agent and not to theSwingline Lender. Any amounts
received by the Swingline Lender from the Borrower or any Co-Borrower (or
other party on behalf of the Borroweror any Co-Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations thereinshall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remittedby the Administrative Agent to the Revolving Facility Lenders that
shall have made their payments pursuant to this paragraph and to theSwingline
Lender, as their interests may appear;
provided
, that any such payment so remitted shall be repaid to the Swingline Lenderor
to the Administrative Agent, as applicable, if and to the extent such payment
is required to be refunded to the Borrower or any Co-Borrowerfor any reason.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower or any Co-Borrowerof any default in the payment
thereof.
(d)
The Borrower may, at any time and from time to time, designate as additional
Swingline Lenders one or more Revolving Facility Lendersthat agree to serve in
such capacity as provided below. The acceptance by a Revolving Facility Lender
of an appointment as a SwinglineLender hereunder shall be evidenced by an
agreement, which shall be in form and substance reasonably satisfactory to the
AdministrativeAgent and the Borrower, executed by the Borrower, the
Administrative Agent and such designated Swingline Lender, and, from and after
theeffective date of such agreement, (i) such Revolving Facility Lender shall
have all the rights and obligations of a Swingline Lenderunder this Agreement
and (ii) references herein to the term "Swingline Lender" shall be deemed to
include such RevolvingFacility Lender in its capacity as a lender of Swingline
Loans hereunder.
Section 2.05
Letters of Credit
. (a)
General
. Subject to the terms and conditionsset forth herein, the Borrower or any
Co-Borrower may request the issuance of one or more letters of credit in
Dollars or any AlternateCurrency in the form of (x) if agreed to by the
applicable Issuing Bank, trade letters of credit in support of trade
obligationsof the Borrower and its Subsidiaries incurred in the ordinary
course of business (such letters of credit issued for such purposes, "
TradeLetters of Credit
") and (y) standby letters of credit issued for any other lawful purposes of
the Borrower and its Subsidiaries(such letters of credit issued for such
purposes, "
Standby Letters of Credit
"; each such letter of credit, issued hereunder,a "
Letter of Credit
" and collectively, the "
Letters of Credit
") for its own account or for the accountof any Subsidiary (subject to the
applicable Issuing Bank's review and satisfaction of compliance with all
applicable "knowyour customer" and anti-money laundering rules and
regulations, including the USA PATRIOT Act, with respect to any such
Subsidiary)in a form reasonably acceptable to the applicable Issuing Bank, at
any time
84
and from time to time during the applicableAvailability Period and prior to
the date that is five Business Days prior to the applicable Revolving Facility
Maturity Date. In theevent of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of
letter of creditapplication or other agreement submitted by the Borrower or
the applicable Co-Borrower to, or entered into by the Borrower or the
applicableCo-Borrower with, an Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control.
(b)
Notice of Issuance, Amendment, Renewal, Extension: Certain Conditions
. To request the issuance of a Letter of Credit (orthe amendment, renewal
(other than an automatic extension in accordance with paragraph (c)
of this Section) or extension ofan outstanding Letter of Credit), the Borrower
or the applicable Co-Borrower shall hand deliver or telecopy (or transmit by
electroniccommunication, if arrangements for doing so have been approved by
the applicable Issuing Bank) to the applicable Issuing Bank and theAdministrativ
e Agent (at least three Business Days in advance of the requested date of
issuance, amendment or extension or such shorterperiod as the Administrative
Agent and the applicable Issuing Bank in their sole discretion may agree) a
notice substantially in the formof Exhibit C-3 requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended or
extended, and specifyingthe date of issuance, amendment or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(whichshall comply with paragraph (c)
of this Section), the amount and currency (which may be Dollars or any
Alternate Currency)of such Letter of Credit, the name and address of the
beneficiary thereof, whether such Letter of Credit constitutes a Standby
Letterof Credit or a Trade Letter of Credit, the Class of Revolving Facility
Commitments such Letter of Credit is to be issued under and suchother
information as shall be necessary to issue, amend or extend such Letter of
Credit. If requested by the applicable Issuing Bank,the Borrower or the
applicable Co-Borrower also shall submit a letter of credit application on
such Issuing Bank's standard formin connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended or extended only if
(and upon issuance,amendment or extension of each Letter of Credit the
Borrower or the applicable Co-Borrower shall be deemed to represent and
warrant that),after giving effect to such issuance, amendment or extension,
(i) the Revolving Facility Credit Exposure shall not exceed the applicableRevolv
ing Facility Commitments, (ii) the Revolving L/C Exposure shall not exceed the
Letter of Credit Sublimit and (iii) the aggregateoutstanding amount of Letters
of Credit issued by such Issuing Bank shall not exceed the applicable amount
set forth for such IssuingBank in the definition of "Issuing Bank" hereunder.
For the avoidance of doubt, no Issuing Bank shall be obligated to issuean
Alternate Currency Letter of Credit if such Issuing Bank does not otherwise
issue letters of credit in such Alternate Currency. Notwithstandingany other
provision of this Agreement or any other Loan Document to the contrary, no
Issuing Bank shall be required to issue, amend, extend,renew or increase any
Letter of Credit if such issuance, amendment, extension or increase would
violate one or more of the applicableIssuing Bank's policies (now or hereafter
in effect) applicable to letters of credit.
(c)
Expiration Date
. Each Letter of Credit shall expire at or prior to the close of business on
the earlier of (i) thedate one year (unless otherwise agreed upon by the
Borrower or the applicable Co-Borrower and the applicable Issuing Bank in
their solediscretion) after the date of the issuance of such Letter of Credit
(or, in the case of any extension thereof, one year (unless otherwiseagreed
upon by the Borrower or the applicable Co-Borrower and the applicable Issuing
Bank in their sole discretion) after such renewalor extension) and (ii) the
date that is five Business Days prior to the applicable Revolving Facility
Maturity Date;
provided
,that any Letter of Credit with a one year tenor may provide for automatic
renewal or extension thereof for additional one year periods(which, in no
event, shall extend beyond the date referred to in clause (ii) of this
paragraph (c)) so long as such Letter of Creditpermits the applicable Issuing
Bank to prevent any such extension at least once in each twelve-month period
(commencing with the dateof issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof within a time period during such
twelve-monthperiod to be agreed upon at the
85
time such Letter of Credit is issued;
provided
,
further
, that if such Issuing Bank consents in its sole discretion, the expiration
date on any Letter of Creditmay extend beyond the date referred to in clause
(ii) above,
provided
, that if any such Letter of Credit is outstanding oris issued under the
Revolving Facility Commitments of any Class after the date that is five
Business Days prior to the Revolving FacilityMaturity Date for such Class the
Borrower or the applicable Co-Borrower shall provide Cash Collateral pursuant
to documentation reasonablysatisfactory to the Collateral Agent and the
relevant Issuing Bank in an amount equal to the face amount of each such
Letter of Crediton or prior to the date that is five Business Days prior to
such Revolving Facility Maturity Date or, if later, such date of issuance.
(d)
Participations
. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof)under the Revolving Facility Commitments of any
Class and without any further action on the part of the applicable Issuing
Bank or theRevolving Facility Lenders, such Issuing Bank hereby grants to each
Revolving Facility Lender under such Class, and each such RevolvingFacility
Lender hereby acquires from such Issuing Bank, a participation in such Letter
of Credit equal to such Revolving Facility Lender'sapplicable Revolving
Facility Percentage of the aggregate amount available to be drawn under such
Letter of Credit (calculated, in thecase of Alternate Currency Letters of
Credit, based on the Dollar Equivalent thereof). In consideration and in
furtherance of the foregoing,each Revolving Facility Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of theapplicable Issuing Bank, in Dollars, such Revolving Facility Lender's
applicable Revolving Facility Percentage of each L/C Disbursementmade by such
Issuing Bank and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section, or ofany reimbursement payment required to be
refunded to the Borrower for any reason (calculated, in the case of any
Alternate Currency Letterof Credit, based on the Dollar Equivalent thereof).
Each Revolving Facility Lender acknowledges and agrees that its obligation to
acquireparticipations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by
anycircumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of aDefault or Event of
Default or reduction or termination of the Commitments or the fact that, as a
result of changes in currency exchangerates, such Revolving Facility Lender's
Revolving Facility Credit Exposure at any time might exceed its Revolving
Facility Commitmentat such time (in which case Section 2.11(g) would apply),
and that each such payment shall be made without any offset, abatement,withholdi
ng or reduction whatsoever.
(e)
Reimbursement
. If the applicable Issuing Bank shall make any L/C Disbursement in respect of
a Letter of Credit, the Borrowerand each Co-Borrower shall reimburse such L/C
Disbursement by paying to the Administrative Agent an amount in Dollars equal
to such L/CDisbursement (or, in the case of an Alternate Currency Letter of
Credit, the Dollar Equivalent thereof) not later than 2:00 p.m., LocalTime, on
the first Business Day after the Borrower receives notice under paragraph (g)
of this Section of such L/C Disbursement(or the second Business Day, if such
notice is received after 12:00 noon, Local Time), together with accrued
interest thereon from thedate of such L/C Disbursement at the rate applicable
to ABR Revolving Loans of the applicable Class;
provided
, that the Borrowermay, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment
befinanced with an ABR Revolving Facility Borrowing of the applicable Class or
a Swingline Borrowing, as applicable, in an equivalent amountand, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resultingABR Revolving Facility Borrowing or
Swingline Borrowing. If the Borrower or any Co-Borrower fails to reimburse any
L/C Disbursement whendue, then the Administrative Agent shall promptly notify
the applicable Issuing Bank and each other applicable Revolving Facility
Lenderof the applicable L/C Disbursement, the payment then due from the
Borrower and each Co-Borrower in respect thereof (the "
UnreimbursedAmount
") and, in the case of a Revolving Facility Lender, such
86
Lender's Revolving Facility Percentagethereof. Promptly following receipt of
such notice, each Revolving Facility Lender with a Revolving Facility
Commitment of the applicableClass shall pay to the Administrative Agent in
Dollars its Revolving Facility Percentage of the Unreimbursed Amount in the
same manneras provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply,
mutatis mutandis
,to the payment obligations of the Revolving Facility Lenders), and the
Administrative Agent shall promptly pay to the applicable IssuingBank the
amounts so received by it from the Revolving Facility Lenders. Promptly
following receipt by the Administrative Agent of anypayment from the Borrower
or any Co-Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to theapplicable Issuing Bank or, to the extent that
Revolving Facility Lenders have made payments pursuant to this paragraph to
reimburse suchIssuing Bank, then to such Lenders and such Issuing Bank as
their interests may appear. Any payment made by a Revolving Facility
Lenderpursuant to this paragraph to reimburse an Issuing Bank for any L/C
Disbursement (other than the funding of an ABR Revolving Loan or aSwingline
Borrowing as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower or any Co-Borrower of its obligationto reimburse such L/C
Disbursement.
(f)
Obligations Absolute
. The obligation of the Borrower and each Co-Borrower to reimburse L/C
Disbursements as provided inparagraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in
accordancewith the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceabilityof
any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letterof Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect,(iii) payment by the applicable Issuing
Bank under a Letter of Credit against presentation of a draft or other
document that doesnot comply with the terms of such Letter of Credit or (iv)
any other event or circumstance whatsoever, whether or not similar toany of
the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a rightof setoff against, the
Borrower's or any Co-Borrower's obligations hereunder. Neither the
Administrative Agent, the Lendersnor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection withthe issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of
thecircumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or deliveryof any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawingthereunder), any error in
interpretation of technical terms or any consequence arising from causes
beyond the control of such IssuingBank, or any of the circumstances referred
to in clauses (i), (ii) or (iii) of the first sentence;
provided
, that theforegoing shall not be construed to excuse the applicable Issuing
Bank from liability to the Borrower and each Co-Borrower to the extentof any
direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower and each Co-Borrowerto the extent
permitted by applicable law) suffered by the Borrower and each Co-Borrower
that are determined by final and binding decisionof a court of competent
jurisdiction to have been caused by such Issuing Bank's failure to exercise
care when determining whetherdrafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that,in the absence of gross negligence or willful misconduct on the
part of the applicable Issuing Bank, such Issuing Bank shall be deemedto have
exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the partiesagree that, with respect
to documents presented that appear on their face to be in substantial
compliance with the terms of a Letter ofCredit, the applicable Issuing Bank
may, in its sole discretion, either accept and make payment upon such
documents without responsibilityfor further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make payment
upon such documentsif such documents are not in strict compliance with the
terms of such Letter of Credit.
87
(g)
Disbursement Procedures
. The applicable Issuing Bank shall, promptly following its receipt thereof,
examine all documentspurporting to represent a demand for payment under a
Letter of Credit. Such Issuing Bank shall promptly notify the Administrative
Agentand the Borrower by written notice (including by electronic means) of any
such demand for payment under a Letter of Credit and whethersuch Issuing Bank
has made or will make an L/C Disbursement thereunder;
provided
, that any failure to give or delay in giving suchnotice shall not relieve the
Borrower or any Co-Borrower of its obligation to reimburse such Issuing Bank
and the Revolving Facility Lenderswith respect to any such L/C Disbursement.
(h)
Interim Interest
. If an Issuing Bank shall make any L/C Disbursement, then, unless the
Borrower or any applicable Co-Borrowershall reimburse such L/C Disbursement in
full on the date such L/C Disbursement is made, the unpaid amount thereof
shall bear interest,for each day from and including the date such L/C
Disbursement is made to but excluding the date that the Borrower or any
applicable Co-Borrowerreimburses such L/C Disbursement, at the rate per annum
then applicable to ABR Revolving Loans of the applicable Class;
provided
,that, if such L/C Disbursement is not reimbursed by the Borrower or such
Co-Borrower when due pursuant to paragraph (e) of this Section,then Section
2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of the applicable IssuingBank, except that interest accrued on and
after the date of payment by any Revolving Facility Lender pursuant to
paragraph (e) ofthis Section to reimburse such Issuing Bank shall be for the
account of such Revolving Facility Lender to the extent of such payment.
(i)
Replacement and Removal of an Issuing Bank
.
(i)
An Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced IssuingBank and the successor
Issuing Bank. The Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank. Atthe time any such replacement shall become
effective, the Borrower and each Co-Borrower shall pay all unpaid fees accrued
for the accountof the replaced Issuing Bank pursuant to Section 2.12. From and
after the effective date of any such replacement, (i) the successorIssuing
Bank shall have all the rights and obligations of the replaced Issuing Bank
under this Agreement with respect to Letters of Creditto be issued thereafter
and (ii) references herein to the term "Issuing Bank" shall be deemed to refer
to such successoror to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the replacementof
an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligationsof such
Issuing Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement but shall not be requiredto issue additional
Letters of Credit.
(ii)
An Issuing Bank may be removed at any time by written agreement among the
Borrower or any applicable Co-Borrower, the AdministrativeAgent and the
removed Issuing Bank. At the time any such removal shall become effective,
the Borrower shall pay all unpaid feesaccrued for the account of the replaced
Issuing Bank pursuant to Section 2.12. After the removal of an Issuing Bank
hereunder,the removed Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of such Issuing Bank underthis
Agreement with respect to Letters of Credit issued by it prior to such removal
but shall not be required to issue additional Lettersof Credit.
(j)
Cash Collateralization Following Certain Events
. If and when the Borrower or any applicable Co-Borrower is required to
CashCollateralize any Revolving L/C Exposure relating to any outstanding
Letters of Credit pursuant to any of Section 2.05(c), 2.11(e),2.11(f),
2.11(g), 2.22(a)(v) or 7.01, the Borrower or such Co-Borrower shall deposit in
an account with or at the direction
88
of the Collateral Agent, in the nameof the Collateral Agent and for the
benefit of the Lenders, an amount in cash in Dollars equal to the Revolving
L/C Exposure as of suchdate (or, in the case of Sections 2.05(c), 2.11(e),
2.11(f), 2.11(g) and 2.22(a)(v), the portion thereof required by such
sections).Each deposit of Cash Collateral (x) made pursuant to this paragraph
or (y) made by the Administrative Agent pursuant to Section 2.22(a)(ii),in
each case, shall be held by the Collateral Agent as collateral for the payment
and performance of the obligations of the Borrower andeach Co-Borrower under
this Agreement. The Collateral Agent shall have exclusive dominion and
control, including the exclusive right ofwithdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at theoption and sole discretion of (i) for so long as an Event
of Default shall be continuing, the Collateral Agent and (ii) at anyother
time, the Borrower, in each case, in Permitted Investments and at the risk and
expense of the Borrower, such deposits shall notbear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be appliedby the Collateral Agent to reimburse each
Issuing Bank for L/C Disbursements for which such Issuing Bank has not been
reimbursed and,to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower and each
Co-Borrowerfor the Revolving L/C Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Lenderswith
Revolving L/C Exposure representing greater than 50% of the total Revolving
L/C Exposure), be applied to satisfy other obligationsof the Borrower and each
Co-Borrower under this Agreement. If the Borrower or any Co-Borrower is
required to provide an amount of CashCollateral hereunder as a result of the
occurrence of an Event of Default or the existence of a Defaulting Lender or
the occurrence ofa limit under Section 2.11(e) or (f) being exceeded, such
amount (to the extent not applied as aforesaid) shall be returned to
theBorrower or such Co-Borrower within three Business Days after all Events of
Default have been cured or waived or the termination of theDefaulting Lender
status or the limits under Sections 2.11(e) and (f) no longer being exceeded,
as applicable.
(k)
Cash Collateralization Following Termination of the Revolving Facilities
. Notwithstanding anything to the contrary herein,in the event of the
prepayment in full of all outstanding Revolving Facility Loans and the
termination of all Revolving Facility Commitments(a "
Revolving Facility Termination Event
") in connection with which the Borrower notifies any one or more Issuing
Banksthat it intends to maintain one or more Letters of Credit initially
issued under this Agreement in effect after the date of such RevolvingFacility
Termination Event (each, a "
Continuing Letter of Credit
"), then the security interest of the Collateral Agentin the Collateral under
the Security Documents may be terminated in accordance with Section 9.18 if
each such Continuing Letter ofCredit is Cash Collateralized in an amount equal
to the Minimum L/C Collateral Amount, which shall be deposited with or at the
directionof each such Issuing Bank.
(l)
Additional Issuing Banks
. From time to time, the Borrower may by notice to the Administrative Agent
designate any Lender(in addition to the initial Issuing Bank) each of which
agrees (in its sole discretion) to act in such capacity and is reasonably
satisfactoryto the Administrative Agent as an Issuing Bank. Each such
additional Issuing Bank shall execute a counterpart of this Agreement upon
theapproval of the Administrative Agent (which approval shall not be
unreasonably withheld) and shall thereafter be an Issuing Bank hereunderfor
all purposes.
(m)
Reporting
. Unless otherwise requested by the Administrative Agent, each Issuing Bank
shall (i) provide to the AdministrativeAgent copies of any notice received
from the Borrower pursuant to Section 2.05(b) no later than the next Business
Day after receiptthereof and (ii) report in writing to the Administrative
Agent (A) on or prior to each Business Day on which such Issuing Bankexpects
to issue, amend or extend any Letter of Credit, the date of such issuance,
amendment or extension, and the aggregate face amountof the Letters of Credit
to be issued, amended or extended by it and outstanding after giving effect to
such issuance, amendment or extensionoccurred
89
(and whether the amount thereof changed),and such Issuing Bank shall be
permitted to issue, amend or extend such Letter of Credit if the Administrative
Agent shall not have advisedsuch Issuing Bank that such issuance, amendment or
extension would not be in conformity with the requirements of this Agreement,
(B) oneach Business Day on which such Issuing Bank makes any L/C Disbursement,
the date of such L/C Disbursement and the amount of such L/CDisbursement and
(C) on any other Business Day, such other information with respect to the
outstanding Letters of Credit issued bysuch Issuing Bank as the Administrative
Agent shall reasonably request.
Section 2.06
Funding of Borrowings
. (a) Each Lender shall make each Loan tobe made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City Time,to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders;
provided
thatSwingline Loans shall be made as provided in Section 2.04;
provided
,
further
, that, with respect to all Alternate CurrencyLoans, Lenders shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer
of immediately availablefunds by 8:00 a.m. New York City Time. The
Administrative Agent will make such Loans available to the Borrower or the
applicable Co-Borrowerby promptly crediting the amounts so received, in like
funds, to an account of the Borrower or the applicable Co-Borrower as
specifiedin the applicable Borrowing Request;
provided
, that ABR Revolving Loans and Swingline Borrowings made to finance the
reimbursementof a L/C Disbursement and reimbursements as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the applicableIssuing
Bank.
(b)
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that suchLender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assumethat such Lender has made such share available
on such date in accordance with clause (a) of this Section and may, in
relianceupon such assumption, make available to the Borrower or the applicable
Co-Borrower a corresponding amount. In such event, if a Lenderhas not in fact
made its share of the Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower orthe applicable Co-Borrower severally
agree to pay to the Administrative Agent forthwith on demand (without
duplication) such correspondingamount with interest thereon, for each day from
and including the date such amount is made available to the Borrower or the
applicableCo-Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by
suchLender, the greater of (A) the Federal Funds Effective Rate and (B) a rate
determined by the Administrative Agent in accordancewith banking industry
rules on interbank compensation or (ii) in the case of a payment to be made by
the Borrower or a Co-Borrower,the interest rate applicable to ABR Loans at
such time. If the Borrower or a Co-Borrower and such Lender shall pay such
interest to theAdministrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower or the applicableCo-Bo
rrower the amount of such interest paid by the Borrower or such Co-Borrower
for such period. If such Lender pays such amount to theAdministrative Agent,
then such amount shall constitute such Lender's Loan included in such
Borrowing. Any payment by the Borroweror any Co-Borrower shall be without
prejudice to any claim the Borrower or such Co-Borrower may have against a
Lender that shall havefailed to make such payment to the Administrative Agent.
(c)
The foregoing notwithstanding, the Administrative Agent, in its sole
discretion, may from its own funds make a Revolving FacilityLoan on behalf of
the Lenders (including by means of Swingline Loans to the Borrower or a
Co-Borrower). In such event, the applicableLenders on behalf of whom the
Administrative Agent made the Revolving Facility Loan shall reimburse the
Administrative Agent for all orany portion of such Revolving Facility Loan
made on its behalf upon written notice given to each applicable Lender not
later than 2:00p.m., Local Time, on the Business Day such reimbursement is
requested. The entire amount of interest attributable to such Revolving
90
Facility Loan for the period from andincluding the date on which such
Revolving Facility Loan was made on such Lender's behalf to but excluding the
date the AdministrativeAgent is reimbursed in respect of such Revolving
Facility Loan by such Lender shall be paid to the Administrative Agent for its
own account.
Section 2.07
Interest Elections
. (a) Each Borrowing initially shall be of the Typespecified in the applicable
Borrowing Request and, in the case of a SOFR Borrowing, shall have an initial
Interest Period as specifiedin such Borrowing Request. Thereafter, the
Borrower or the applicable Co-Borrower may elect to convert such Borrowing to
a different Typeor to continue such Borrowing and, in the case of a SOFR
Borrowing, may elect Interest Periods therefor, all as provided in this
Section.The Borrower or the applicable Co-Borrower may elect different options
with respect to different portions of the affected Borrowing, inwhich case
each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprisingeach such portion
shall be considered a separate Borrowing.
(b)
To make an election pursuant to this Section, the Borrower or the applicable
Co-Borrower shall notify the Administrative Agentof such election in writing,
by the time that a Borrowing Request would be required under Section 2.03 if
the Borrower or such Co-Borrowerwere requesting a Borrowing of the Type
resulting from such election to be made on the effective date of such
election. Each such InterestElection Request shall be irrevocable.
(c)
Each Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i)
the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to differentportions thereof,
the portions thereof to be allocated to each resulting Borrowing (in which
case the information to be specified pursuantto clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);
(ii)
the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a SOFR Borrowing;
and
(iv)
if the resulting Borrowing is a SOFR Borrowing, the Interest Period to be
applicable thereto after giving effect to such election,which shall be a
period contemplated by the definition of the term "Interest Period."
If any such Interest Election Request requestsa SOFR Borrowing but does not
specify an Interest Period, then the Borrower or the applicable Co-Borrower
shall be deemed to have selectedan Interest Period of one month's duration. If
less than all the outstanding principal amount of any Borrowing shall be
convertedor continued, then each resulting Borrowing shall be in an integral
multiple of the Borrowing Multiple and not less than the BorrowingMinimum and
satisfy the limitations specified in Section 2.02(c) regarding the maximum
number of Borrowings of the relevant Type.
(d)
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender to which such InterestElection Request relates
of the details thereof and of such Lender's portion of each resulting
Borrowing.
(e)
If the Borrower or the applicable Co-Borrower fails to deliver a timely
Interest Election Request with respect to a SOFR Borrowingprior to the end of
the Interest Period applicable
91
thereto, then, unless such Borrowingis repaid as provided herein, at the end
of such Interest Period such Borrowing shall be (x) converted to an ABR
Borrowing and (y) inthe case of any Borrowing of any Alternate Currency Loans,
converted to Dollar-denominated ABR Loans. Notwithstanding any contrary
provisionhereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the written request (including a requestthrough
electronic means) of the Required Lenders, so notifies the Borrower or the
applicable Co-Borrower, then, so long as an Event ofDefault is continuing (i)
no outstanding Borrowing may be converted to or continued as a SOFR Borrowing
and (ii) unless repaid,each SOFR Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
Section 2.08
Termination and Reduction of Commitments
. (a) Unless previously terminated,the Revolving Facility Commitments of each
Class shall terminate on the applicable Revolving Facility Maturity Date for
such Class. Onthe Fourteenth Incremental Assumption and Amendment Agreement
Effective Date, after giving effect to the funding of the 2024 RefinancingTerm
B-1 Loans, the 2024 Refinancing Term B-1 Loan Commitment of each 2024
Refinancing Term B-1 Lender terminated. On the Sixteenth IncrementalAssumption
and Amendment Agreement Effective Date, after giving effect to the funding of
the May 2024 Incremental Term B-1 Loans, theMay 2024 Incremental Term B-1 Loan
Commitment of each May 2024 Incremental Term B-1 Lender shall terminate.
(b)
The Borrower may at any time terminate, or from time to time reduce, the
Revolving Facility Commitments of any Class;
provided
,that (i) each reduction of the Revolving Facility Commitments of any Class
shall be in an amount that is an integral multiple of$500,000 and not less
than $1,000,000 (or, if less, the remaining amount of the Revolving Facility
Commitments of such Class) and (ii) theBorrower shall not terminate or reduce
the Revolving Facility Commitments of any Class if, after giving effect to any
concurrent prepaymentof the Revolving Facility Loans in accordance with
Section 2.11 and any Cash Collateralization of Letters of Credit in
accordancewith Section 2.05(j) or (k), the Revolving Facility Credit Exposure
of such Class (excluding any Cash Collateralized Letter of Credit)would exceed
the total Revolving Facility Commitments of such Class.
(c)
The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Revolving Facility Commitments ofany Class under
paragraph (b)
of this Section 2.08 at least three Business Days prior to the effective date
of suchtermination or reduction (or such shorter period acceptable to the
Administrative Agent), specifying such election and the effective datethereof.
Promptly following receipt of any notice, the Administrative Agent shall
advise the applicable Lenders of the contents thereof.Each notice delivered by
the Borrower pursuant to this Section 2.08 shall be irrevocable;
provided
, that a notice oftermination or reduction of the Revolving Facility
Commitments of any Class delivered by the Borrower may state that such notice
is conditionedupon the effectiveness of other credit facilities, indentures or
similar agreements or other transactions, in which case such notice maybe
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is notsatisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments of any Class shall bemade ratably among the Lenders in
accordance with their respective Commitments of such Class.
Section 2.09
Repayment of Loans; Evidence of Debt
. (a) The Borrower and eachCo-Borrower hereby unconditionally promise to pay
(i) to the Administrative Agent for the account of each Revolving Facility
Lenderthe then unpaid principal amount of each Revolving Facility Loan to the
Borrower or any Co-Borrower on the Revolving Facility MaturityDate applicable
to such Revolving Facility Loans, (ii) to the Administrative Agent for the
account of each Lender the then unpaidprincipal amount of each Term Loan of
such Lender as provided in Section 2.10 and (iii) to the Swingline Lender the
then unpaid principalamount of each Swingline Loan applicable to any Class of
Revolving Facility Commitments on the earlier of the Revolving Facility
MaturityDate for such Class and the first date after
92
such Swingline Loan is made that is the 15thor last day of a calendar month
and is at least five Business Days after such Swingline Loan is made;
provided
, that on each datethat a Revolving Facility Borrowing is made by the Borrower
or any Co-Borrower, the Borrower or such Co-Borrower shall repay all
SwinglineLoans then outstanding and the proceeds of any such Borrowing shall
be applied by the Administrative Agent to repay any Swingline Loansoutstanding.
(b)
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the Indebtedness of the Borroweror any Co-Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payableand paid to such Lender from time to time
hereunder.
(c)
The Administrative Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made hereunder, theFacility and Type thereof and the
Interest Period (if any) applicable thereto, (ii) the amount of any principal
or interest due andpayable or to become due and payable from the Borrower or
any Co-Borrower to each Lender hereunder and (iii) any amount receivedby the
Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d)
The entries made in the accounts maintained pursuant to clause (b) or (c) of
this Section shall be prima facie evidenceof the existence and amounts of the
obligations recorded therein;
provided
, that the failure of any Lender or the AdministrativeAgent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower or any Co-Borrowerto repay the Loans in accordance with the terms
of this Agreement.
(e)
Any Lender may request that Loans made by it be evidenced by a promissory note
(a "
Note
"). In such event, theBorrower and the Co-Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to such Lender (or, if
requestedby such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent and reasonably acceptableto the
Borrower. Thereafter, unless otherwise agreed to by the applicable Lender, the
Loans evidenced by such promissory note and interestthereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes insuch form payable to the payee named therein (or, if
requested by such payee, to such payee and its registered assigns).
Section 2.10
Repayment of Term Loans and Revolving Facility Loans
. (a) Subjectto the other clauses of this Section 2.10 and to Section 9.08(e),
(i)
the Borrower or the applicable Co-Borrower shall repay 2024 Refinancing Term
B-1 Loans incurred on the Fourteenth Incremental Assumptionand Amendment
Agreement Effective Date, Incremental Term B-1 Loans incurred on the Fifteenth
Incremental Assumption and Amendment AgreementEffective Date and May 2024
Incremental Term B-1 Loans incurred on the Sixteenth Incremental Assumption
and Amendment Agreement EffectiveDate on the last day of each March, June,
September and December of each year (commencing on September 30, 2024) and on
the applicableTerm Facility Maturity Date or, if any such date is not a
Business Day, on the next preceding Business Day (each such date being
referredto as a "
Term B-1 Loan Installment Date
"), in an aggregate principal amount of such Term B-1 Loans equal to (A) inthe
case of quarterly payments due prior to the applicable Term Facility Maturity
Date, an amount equal to 0.25% of the sum of (I) theaggregate principal amount
of 2024 Refinancing Term B-1 Loans outstanding immediately after the
Fourteenth Incremental Assumption andAmendment Agreement Effective Date plus
(II) the aggregate principal amount of Incremental Term B-1 Loans outstanding
immediately afterthe Fifteenth Incremental Assumption and Amendment Agreement
Effective Date plus (III) the aggregate principal amount of May 2024
IncrementalTerm B-1 Loans outstanding immediately after the Sixteenth
Incremental Assumption and Amendment Agreement
93
Effective Date, and (B) in the case ofsuch payment due on the applicable Term
Facility Maturity Date, an amount equal to the then unpaid principal amount of
such Term B-1 Loansoutstanding;
(ii)
in the event that any Incremental Term Loans are made after the Sixteenth
Incremental Assumption and Amendment Agreement, the Borroweror the applicable
Co-Borrower shall repay such Incremental Term Loans on the dates and in the
amounts set forth in the related IncrementalAssumption Agreement (each such
date being referred to as an "
Incremental Term Loan Installment Date
"); and
(iii)
to the extent not previously paid, outstanding Term Loans shall be due and
payable on the applicable Term Facility Maturity Date.
(b)
To the extent not previously paid, outstanding Revolving Facility Loans shall
be due and payable on the applicable Revolving FacilityMaturity Date.
(c)
Prepayment of the Loans from:
(i)
all Net Proceeds pursuant to Section 2.11(b) and Excess Cash Flow pursuant to
Section 2.11(c) shall be allocated to theClass or Classes of Term Loans
determined pursuant to Section 2.10(d), with the application thereof to reduce
in direct order amountsdue on the succeeding Term Loan Installment Dates under
such Classes as provided in the remaining scheduled amortization payments
undersuch Classes; and
(ii)
any optional prepayments of the Term Loans pursuant to Section 2.11(a) shall
be applied to the remaining installments of theTerm Loans under the applicable
Class or Classes as the Borrower may in each case direct.
(d)
Any mandatory prepayment of Term Loans pursuant to Section 2.11(b) or (c)
shall be applied so that the aggregate amountof such prepayment is allocated
among the Term B-1 Loans and the Other Term Loans, if any, pro rata based on
the aggregate principal amountof outstanding Term B-1 Loans and Other Term
Loans, if any. Prior to any prepayment of any Loan under any Facility
hereunder, the Borrowershall select the Borrowing or Borrowings under the
applicable Facility to be prepaid and shall notify the Administrative Agent by
writtennotice (including by electronic means) of such selection not later than
2:00 p.m., Local Time, (i) in the case of an ABR Borrowing,at least one
Business Day before the scheduled date of such prepayment (or, in the case of
a Swingline Loan, on the scheduled date ofsuch prepayment) and (ii) in the
case of a SOFR Borrowing, at least three U.S. Government Securities Business
Days before the scheduleddate of such prepayment (or, in each case such
shorter period acceptable to the Administrative Agent);
provided
, that a noticeof prepayment may state that such notice is conditioned upon
the effectiveness of other credit facilities, indentures or similar
agreementsor other transactions, in which case such notice may be revoked by
the Borrower (by notice to the Administrative Agent on or prior tothe
specified effective date) if such condition is not satisfied. Each repayment
of a Borrowing (x) in the case of the RevolvingFacility of any Class, shall be
applied to the Revolving Facility Loans included in the repaid Borrowing such
that each Revolving FacilityLender receives its ratable share of such
repayment (based upon the respective Revolving Facility Credit Exposures of
the Revolving FacilityLenders of such Class at the time of such repayment) and
(y) in all other cases, shall be applied ratably to the Loans included inthe
repaid Borrowing. All repayments of Loans shall be accompanied by accrued
interest on the amount repaid to the extent required bySection 2.13(d).
Section 2.11
Prepayment of Loans
. (a) The Borrower and the Co-Borrowers shallhave the right at any time and
from time to time to prepay any Loan in whole or in part, without premium or
penalty (but subject to Section 2.12(d)and Section 2.16), in an aggregate
principal amount that is an integral
94
multiple of the Borrowing Multiple and notless than the Borrowing Minimum or,
if less, the amount outstanding, subject to prior notice in accordance with
Section 2.10(d).Notwithstanding anything to the contrary herein, any voluntary
prepayment of Term Loans pursuant to this Section 2.11(a) may be allocatedamong
the Term B-1 Loans and Other Term Loans, if any, at the option of the Borrower.
(b)
The Borrower shall apply all Net Proceeds promptly upon receipt thereof to
prepay Term Loans in accordance with clauses (c) and(d) of Section 2.10.
Notwithstanding the foregoing, the Borrower may use a portion of such Net
Proceeds to prepay or repurchaseany Other First Lien Debt, in each case in an
amount not to exceed the product of (x) the amount of such Net Proceeds and
(y) afraction, (A) the numerator of which is the outstanding principal amount
of such Other First Lien Debt and (B) the denominatorof which is the sum of
the outstanding principal amount of such Other First Lien Debt and the
outstanding principal amount of all Classesof Term Loans.
(c)
Not later than five Business Days after the date on which the annual financial
statements are, or are required to be, deliveredunder Section 5.04(a) with
respect to each Excess Cash Flow Period, the Borrower shall calculate Excess
Cash Flow for such ExcessCash Flow Period and, if and to the extent the amount
of such Excess Cash Flow exceeds $1,000,000 (the "
ECF Threshold Amount
"),the Borrower shall apply an amount equal to (i) the Required Percentage of
such excess portion of such Excess Cash Flow
minus
(ii)to the extent not financed using the proceeds of the incurrence of funded
term Indebtedness, the sum of (A) the amount of any voluntarypayments during
such Excess Cash Flow Period (
plus
, without duplication of any amounts previously deducted under this clause
(A),the amount of any voluntary payments after the end of such Excess Cash
Flow Period but before the date of prepayment under this clause (c))of (x)
Term Loans (it being understood that the amount of any such payment
constituting a below-par Permitted Loan Purchase shall be calculatedto equal
the amount of cash used and not the principal amount deemed prepaid therewith)
and (y) Other First Lien Debt (
provided
that in the case of the prepayment of any revolving Indebtedness, there was a
corresponding reduction in commitments;
provided
,
further
, that the maximum amount of each such prepayment of Other First Lien Debt
that may be counted for purposes of this clause(A)(y) shall not exceed the
amount that would have been prepaid in respect of such Other First Lien Debt
if such prepayment had been appliedon a ratable basis among the Term Loans and
such Other First Lien Debt (determined based on the aggregate outstanding
principal amountof Term Loans and the aggregate principal amount of such Other
First Lien Debt on the date of such prepayment)) and (B) the amountof any
permanent voluntary reductions during such Excess Cash Flow Period (plus,
without duplication of any amounts previously deductedunder this clause (B),
the amount of any permanent voluntary reductions after the end of such Excess
Cash Flow Period but beforethe date of prepayment under this clause (c)) of
Revolving Facility Commitments to the extent that an equal amount of Revolving
FacilityLoans was simultaneously repaid, (I) to prepay Term Loans in
accordance with clauses (c) and (d) of Section 2.10 or (II) to prepayTerm
Loans in accordance with clauses (c) and (d) of Section 2.10 and to prepay any
Other First Lien Debt in accordance with the agreement(s)governing such Other
First Lien Debt so long as the prepayments under this clause (II) are applied
in a manner such that the Term Loansare prepaid on at least a ratable basis
(determined based on the aggregate outstanding principal amount of Term Loans
and the aggregateoutstanding principal amount of such Other First Lien Debt
being prepaid under this clause (II) on the date of such prepayments).
Suchcalculation will be set forth in a certificate signed by a Financial
Officer of the Borrower delivered to the Administrative Agent settingforth the
amount, if any, of Excess Cash Flow for such fiscal year, the amount of any
required prepayment in respect thereof and the calculationthereof in
reasonable detail.
(d)
Notwithstanding any other provisions of this Section 2.11 to the contrary, (i)
to the extent that any Net Proceeds ofany Asset Sale by a Foreign Subsidiary
or Excess Cash Flow attributable to a Foreign Subsidiary would otherwise be
required to be appliedpursuant to Section 2.11(b) or Section 2.11(c) but is
prohibited, restricted or delayed by applicable local law from
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being repatriated to the United Statesof America, the portion of such Net
Proceeds or Excess Cash Flow so affected will not be required to be applied to
repay Term Loans atthe times provided in Section 2.11(b) or Section 2.11(c)
but may be retained by the applicable Foreign Subsidiary so long, butonly so
long, as the applicable local law will not permit repatriation to the United
States of America, and once such repatriation ofany of such affected Net
Proceeds or Excess Cash Flow is permitted under the applicable local law, such
repatriation will be effectedand such repatriated Net Proceeds or Excess Cash
Flow will be promptly applied (net of additional taxes payable or reserved
against asa result thereof) to the repayment of the Term Loans pursuant to
Section 2.11(b) or Section 2.11(c), to the extent provided therein and(ii) to
the extent that the Borrower has determined in good faith in consultation with
the Administrative Agent that repatriation of anyor all of such Net Proceeds
or Excess Cash Flow that would otherwise be required to be applied pursuant to
Section 2.11(b) or Section2.11(c) would have a material adverse tax cost
consequence with respect to such Net Proceeds or Excess Cash Flow, the Net
Proceeds orExcess Cash Flow so affected may be retained by the applicable
Foreign Subsidiary (the Borrower hereby agreeing to cause the applicableSubsidia
ry to promptly use commercially reasonable efforts to take all actions within
the reasonable control of the Borrower that arereasonably required to
eliminate such tax effects).
(e)
In the event that the aggregate amount of Revolving Facility Credit Exposure
of any Class exceeds the total Revolving FacilityCommitments of such Class
(other than as a result of changes in currency exchange rates), the Borrower
and the Co-Borrowers shall prepayRevolving Facility Borrowings of such Class
or Swingline Borrowings (or, if no such Borrowings are outstanding, provide
Cash Collateralin respect of outstanding Letters of Credit pursuant to Section
2.05(j)) in an aggregate amount equal to such excess.
(f)
In the event that the Revolving L/C Exposure exceeds the Letter of Credit
Sublimit (other than as a result of changes in currencyexchange rates), at the
request of the Administrative Agent, the Borrower and the Co-Borrower shall
provide Cash Collateral pursuant toSection 2.05(j) in an aggregate amount
equal to such excess.
(g)
If as a result of changes in currency exchange rates, on any Revaluation Date,
(i) the total Revolving Facility Credit Exposureof any Class exceeds the total
Revolving Facility Commitments of such Class or (ii) the Revolving L/C
Exposure exceeds the Letter of CreditSublimit, the Borrower and the
Co-Borrower shall, at the request of the Administrative Agent, within 10 days
of such Revaluation Date(A) prepay Revolving Facility Borrowings of such Class
or Swingline Borrowings or (B) provide Cash Collateral pursuant to Section
2.05(j),in an aggregate amount such that the applicable exposure does not
exceed the applicable commitment sublimit or amount set forth above.
Section 2.12
Fees
. (a) The Borrower and each Co-Borrower agrees to pay to eachLender (other
than any Defaulting Lender), through the Administrative Agent, on the date
that is the last Business Day of March, June,September and December in each
year and on the date on which the Revolving Facility Commitments of all the
Lenders shall beterminated as provided herein, a commitment fee (a "
Commitment Fee
") on the daily amount of the applicable AvailableUnused Commitment of such
Lender during the preceding quarter (or other period commencing with the
Closing Date or ending with the dateon which the last of the Commitments of
such Lender shall be terminated) at a rate equal to the Applicable Commitment
Fee. All CommitmentFees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days. For the purpose of calculating any
Lender'sCommitment Fee, the outstanding Swingline Loans during the period for
which such Lender's Commitment Fee is calculated shall bedeemed to be zero.
The Commitment Fee due to each Lender shall commence to accrue on the Closing
Date and shall cease to accrue on thedate on which the last of the Commitments
of such Lender shall be terminated as provided herein.
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(b)
The Borrower and each Co-Borrower from time to time agrees to pay (i) to each
Revolving Facility Lender of each Class (otherthan any Defaulting Lender),
through the Administrative Agent, on the date that is the last Business Day of
March, June, September andDecember of each year and on the date on which the
Revolving Facility Commitments of all the Lenders shall be terminated as
providedherein, a fee in Dollars (an "
L/C Participation Fee
") on such Lender's Revolving Facility Percentage of the dailyaggregate
Revolving L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) of such Class, duringthe preceding quarter (or
shorter period commencing with the Closing Date or ending with the Revolving
Facility Maturity Date or the dateon which the Revolving Facility Commitments
of such Class shall be terminated) at the rate per annum equal to the
Applicable Margin forSOFR Revolving Facility Borrowings of such Class
effective for each day in such period, and (ii) to each Issuing Bank, for its
ownaccount (x) on the date that is the last Business Day of March, June,
September and December of each year and on the dateon which the Revolving
Facility Commitments of all the Lenders shall be terminated, a fronting fee in
respect of each Letter of Creditissued by such Issuing Bank for the period
from and including the date of issuance of such Letter of Credit to and
including the terminationof such Letter of Credit, computed at a rate equal to
1/8 of 1.00% per annum of the Dollar Equivalent of the daily stated amount of
suchLetter of Credit,
plus
(y) in connection with the issuance, amendment or transfer of any such Letter
of Credit or any L/CDisbursement thereunder, such Issuing Bank's customary
documentary and processing fees and charges (collectively, "
IssuingBank Fees
"). All L/C Participation Fees and Issuing Bank Fees that are payable on a per
annum basis shall be computed on thebasis of the actual number of days elapsed
in a year of 360 days.
(c)
The Borrower and each Co-Borrower agrees to pay to the Administrative Agent,
for the account of the Administrative Agent, the "FirstLien Facilities
Administration Fee" as set forth in the Administrative Agent Fee Letter, as it
may be amended, restated, supplementedor otherwise modified from time to time,
at the times specified therein (the "
Administrative Agent Fees
").
(d)
In the event that, on or prior to the date that is six months after the
Fourteenth Incremental Assumption and Amendment AgreementEffective Date, the
Borrower or any Co-Borrower shall (x) make a prepayment of the Term B-1 Loans
pursuant to Section 2.11(a)with the proceeds of any new or replacement tranche
of long-term secured term loans that are broadly syndicated to banks and other
institutionalinvestors in financings similar to the Term B-1 Loans and have an
All-in Yield that is less than the All-in Yield of such Term B-1 Loans,or (y)
effect any amendment to this Agreement which reduces the All-in Yield of the
Term B-1 Loans (other than, in the case of eachof clauses (x) and (y), in
connection with a Qualified IPO, a Change in Control or a transformative
acquisition referred to in the lastsentence of this paragraph), the Borrower
or applicable Co-Borrower shall pay to the Administrative Agent, for the
ratable account ofeach of the applicable Lenders, (A) in the case of clause
(x), a prepayment premium of 1.00% of the aggregate principal amount ofthe
Term B-1 Loans so prepaid and (B) in the case of clause (y), a fee equal to
1.00% of the aggregate principal amount of the applicableTerm B-1 Loans for
which the All-in Yield has been reduced pursuant to such amendment. Such
amounts shall be due and payable on the dateof such prepayment or the
effective date of such amendment, as the case may be. For purposes of this
Section 2.12(d), a "transformativeacquisition" is any acquisition by the
Borrower or any Subsidiary that is (i) not permitted by the terms of the Loan
Documents immediatelyprior to the consummation of such acquisition or (ii) if
permitted by the terms of the Loan Documents immediately prior to the
consummationof such acquisition, would not provide the Borrower and its
Subsidiaries with adequate flexibility under the Loan Documents for the
continuationand/or expansion of their combined operations following such
consummation, as determined by the Borrower in good faith.
(e)
All Fees shall be paid on the dates due, in immediately available funds, to
the Administrative Agent for distribution, if and asappropriate, among the
Lenders, except that Issuing
97
Bank Fees shall be paid directly tothe applicable Issuing Banks. Once paid,
none of the Fees shall be refundable under any circumstances.
Section 2.13
Interest
. (a) The Loans comprising each ABR Borrowing (includingeach Swingline Loan)
shall bear interest at the ABR
plus
the Applicable Margin.
(b)
The Loans comprising each SOFR Borrowing shall bear interest at Adjusted Term
SOFR for the Interest Period in effect for such Borrowing
plus
the Applicable Margin.
(c)
Notwithstanding the foregoing, if any principal of or interest on any Loan or
any Fees or other amount payable by the Borroweror any Co-Borrower hereunder
is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shallbear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2.00%
plus
the rate otherwise applicable to such Loan as provided in the preceding
clauses of this Section 2.13 or (ii) inthe case of any other overdue amount,
2.00%
plus
the rate applicable to ABR Loans as provided in clause (a) of this Section;
provided
, that this clause (c) shall not apply to any Event of Default that has been
waived by the Lenders pursuant to Section 9.08.
(d)
Accrued interest on each Loan shall be payable in arrears (i) on each Interest
Payment Date for such Loan, (ii) in thecase of Revolving Facility Loans, upon
termination of the applicable Revolving Facility Commitments and (iii) in the
case of theTerm Loans, on the applicable Term Facility Maturity Date;
provided
, that (A) interest accrued pursuant to clause (c) ofthis Section 2.13 shall
be payable on demand, (B) in the event of any repayment or prepayment of any
Loan (other than a prepaymentof a Revolving Facility Loan that is an ABR Loan
that is not made in conjunction with a permanent commitment reduction),
accrued intereston the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (C) in the event of anyconversion
of any SOFR Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable onthe effective date of such
conversion.
(e)
All interest hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to theABR shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case
shall be payable for the actualnumber of days elapsed (including the first day
but excluding the last day). The applicable ABR or Adjusted Term SOFR shall be
determinedby the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(f)
In connection with the use or administration of Term SOFR, the Administrative
Agent will have the right, in consultation with theBorrower, to make
Conforming Changes from time to time and, notwithstanding anything to the
contrary herein or in any other Loan Document,any amendments implementing such
Conforming Changes will become effective without any further action or consent
of any other party tothis Agreement or any other Loan Document. The
Administrative Agent will promptly notify the Borrower and the Lenders of the
effectivenessof any Conforming Changes in connection with the use or
administration of Term SOFR.
Section 2.14
Alternate Rate of Interest
.
(a) Subject to clauses (b),(c), (d), (e) and (f) of this Section 2.14, if on
or prior to the first day of any Interest Period for any SOFR Loan:
i. the Administrative Agent determines (which determination shall be conclusive and binding absent
manifesterror) that "Adjusted Term SOFR" cannot be determined pursuant to the definition thereof; or
98
ii. the Required Lenders determine that for any reason in connection with any request for a SOFR Loan or aconversion
thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect
to a proposed SOFRLoan does not adequately and fairly reflect the cost to such Lenders of making and maintaining
such Loan, and the Required Lenders haveprovided notice of such determination to the Administrative Agent;
then the Administrative Agentwill promptly so notify the Borrower and each
Lender.
Upon notice thereof by theAdministrative Agent to the Borrower, any obligation
of the Lenders to make SOFR Loans, and any right of the Borrower and any
Co-Borrowerto continue SOFR Loans or to convert ABR Loans to SOFR Loans, shall
be suspended (to the extent of the affected SOFR Loans or affectedInterest
Periods) until the Administrative Agent (with respect to clause (b), at the
instruction of the Required Lenders) revokes suchnotice. Upon receipt of such
notice, (i) the Borrower and any Co-Borrower may revoke any pending request
for a borrowing of, conversionto or continuation of SOFR Loans (to the extent
of the affected SOFR Loans or affected Interest Periods) or, failing that, the
Borroweror the applicable Co-Borrower will be deemed to have converted any
such request into a request for a Borrowing of or conversion to ABRLoans in
the amount specified therein and (ii) any outstanding affected SOFR Loans will
be deemed to have been converted into ABR Loansat the end of the applicable
Interest Period. Upon any such conversion, the Borrower and the applicable
Co-Borrower shall also pay accruedinterest on the amount so converted,
together with any additional amounts required pursuant to Section 2.16. If the
Administrative Agentdetermines (which determination shall be conclusive and
binding absent manifest error) that "Adjusted Term SOFR" cannot bedetermined
pursuant to the definition thereof on any given day, the interest rate on ABR
Loans shall be determined by the AdministrativeAgent without reference to
clause (c) of the definition of "ABR" until the Administrative Agent revokes
such determination.
(b)
(i) Notwithstanding anything to the contrary herein or in any other Loan
Document, if a Benchmark Transition Event and its relatedBenchmark Replacement
Date have occurred prior to any setting of the then-current Benchmark, then
(x) if a Benchmark Replacement is determinedin accordance with clause (a) of
the definition of "Benchmark Replacement" for such Benchmark Replacement Date,
such BenchmarkReplacement will replace such Benchmark for all purposes
hereunder and under any Loan Document in respect of such Benchmark setting
andsubsequent Benchmark settings without any amendment to, or further action
or consent of any other party to, this Agreement or any otherLoan Document and
(y) if a Benchmark Replacement is determined in accordance with clause (b) of
the definition of "Benchmark Replacement"for such Benchmark Replacement Date,
such Benchmark Replacement will replace such Benchmark for all purposes
hereunder and under any LoanDocument in respect of any Benchmark setting at or
after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the
datenotice of such Benchmark Replacement is provided to the Lenders without
any amendment to, or further action or consent of any other partyto, this
Agreement or any other Loan Document so long as the Administrative Agent has
not received, by such time, written notice of objectionto such Benchmark
Replacement from Lenders comprising the Required Lenders.
(ii) No swap agreement shallbe deemed to be a "Loan Document" for purposes of
this Section 2.21.
(c)
In connection with the use, administration, adoption or implementation of a
Benchmark Replacement, the Administrative Agent willhave the right to make
Conforming Changes from time to time and, notwithstanding anything to the
contrary herein or in any other LoanDocument, any
99
amendments implementing such Conforming Changeswill become effective without
any further action or consent of any other party to this Agreement or any
other Loan Document.
(d)
The Administrative Agent will promptly notify the Borrower and the Lenders of
(i) the implementation of any Benchmark Replacementand (ii) the effectiveness
of any Conforming Changes in connection with the use, administration, adoption
or implementation of a BenchmarkReplacement. The Administrative Agent will
notify the Borrower of (x) the removal or reinstatement of any tenor of a
Benchmark pursuantto Section 2.14(e) and (y) the commencement of any Benchmark
Unavailability Period. Any determination, decision or election that may bemade
by the Administrative Agent or, if applicable, any Lender (or group of
Lenders) pursuant to this Section 2.14, including any determinationwith
respect to a tenor, rate or adjustment or of the occurrence or non-occurrence
of an event, circumstance or date and any decisionto take or refrain from
taking any action or any selection, will be conclusive and binding absent
manifest error and may be made in itsor their sole discretion and without
consent from any other party to this Agreement or any other Loan Document,
except, in each case,as expressly required pursuant to this Section 2.14.
(e)
Notwithstanding anything to the contrary herein or in any other Loan Document,
at any time (including in connection with the implementationof a Benchmark
Replacement), (i) if the then-current Benchmark is a term rate (including the
Term SOFR Reference Rate) and either (A)any tenor for such Benchmark is not
displayed on a screen or other information service that publishes such rate
from time to time as selectedby the Administrative Agent in its reasonable
discretion or (B) the regulatory supervisor for the administrator of such
Benchmark hasprovided a public statement or publication of information
announcing that any tenor for such Benchmark is not or will not be
representative,then the Administrative Agent may modify the definition of
"Interest Period" (or any similar or analogous definition) forany Benchmark
settings at or after such time to remove such unavailable or non-representative
tenor and (ii) if a tenor that was removedpursuant to clause (i) above either
(A) is subsequently displayed on a screen or information service for a
Benchmark (including a BenchmarkReplacement) or (B) is not, or is no longer,
subject to an announcement that it is not or will not be representative for a
Benchmark (includinga Benchmark Replacement), then the Administrative Agent
may modify the definition of "Interest Period" (or any similar oranalogous
definition) for all Benchmark settings at or after such time to reinstate such
previously removed tenor.
(f)
Upon the Borrower's receipt of notice of the commencement of a Benchmark
Unavailability Period, the Borrower and any Co-Borrowermay revoke any pending
request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans
to be made, converted or continuedduring any Benchmark Unavailability Period
and, failing that, the Borrower and such Co-Borrower will be deemed to have
converted any suchrequest for a SOFR Loan into a request for a Borrowing of or
conversion to ABR Loans denominated in Dollars. During a Benchmark
UnavailabilityPeriod or at any time that a tenor for the then-current
Benchmark is not an Available Tenor, the component of ABR based upon the
then-currentBenchmark or such tenor for such Benchmark, as applicable, will
not be used in any determination of ABR.
(g)
Furthermore, if any Loan in any Agreed Currency is outstanding on the date of
the Borrower's receipt of notice of the commencementof a Benchmark
Unavailability Period, then (i) if such SOFR Loan is denominated in Dollars,
then on the last day of the Interest Periodapplicable to such Loan (or the
next succeeding U.S. Government Securities Business Day if such day is not a
U.S. Government SecuritiesBusiness Day), such Loan shall be converted by the
Administrative Agent to, and shall constitute an ABR Loan on such day or (ii)
if suchLoan is denominated in any Agreed Currency (other than Dollars), then
such Loan shall, on the last day of the Interest Period applicableto such Loan
(or the next succeeding U.S. Government Securities Business Day if such day is
not a U.S. Government Securities BusinessDay), at the Borrower's election
prior to such day; (A) be prepaid by the Borrower on such day or (B) be
exchanged for an equivalentamount of Dollars and be converted by the
Administrative
100
Agent to, and (subject to the remainder ofthis subclause (B)) shall
constitute, an ABR Loan on such day (it being understood and agreed that if
the Borrower does not so prepaysuch Loan on such day by 12:00 noon New York
City time the Administrative Agent is authorized to effect such exchange and
conversion ofsuch Loan into an ABR Loan), and, in the case of such subclause
(B), upon any subsequent implementation of a Benchmark Replacement inrespect
of such Agreed Currency pursuant to this Section 2.14, such ABR Loan shall
then be exchanged for an equivalent amount of suchAgreed Currency and
converted by the Administrative Agent to, and shall constitute, a Loan
denominated in such original Agreed Currencyon the day of such implementation,
giving effect to such Benchmark Replacement in respect of such Agreed Currency.
Section 2.15
Increased Costs
. (a) If any Change in Law shall:
(i)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for theaccount of, or credit
extended by, any Lender or Issuing Bank; or
(ii)
subject any Lender to any Tax with respect to any Loan Document (other than
(i) Taxes indemnifiable under Section 2.17or (ii) Excluded Taxes); or
(iii)
impose on any Lender or Issuing Bank any other condition affecting this
Agreement or SOFR Loans made by such Lender or any Letterof Credit or
participation therein;
and the result of any of the foregoing shallbe to increase the cost to such
Lender of making or maintaining any SOFR Loan (or of maintaining its
obligation to make any such Loan)or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce theamount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), thenthe
Borrower will pay to such Lender or Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lenderor Issuing Bank, as
applicable, for such additional costs incurred or reduction suffered.
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding
capital or liquidity requirements has or would have theeffect of reducing the
rate of return on such Lender's or Issuing Bank's capital or on the capital of
such Lender'sor Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Lettersof Credit or
Swingline Loans held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which suchLender or such Issuing Bank or
such Lender's or such Issuing Bank's holding company could have achieved but
for such Changein Law (taking into consideration such Lender's or such Issuing
Bank's policies and the policies of such Lender's orsuch Issuing Bank's
holding company with respect to capital adequacy or liquidity), then from time
to time the Borrower shall payto such Lender or such Issuing Bank, as
applicable, such additional amount or amounts as will compensate such Lender
or such Issuing Bankor such Lender's or such Issuing Bank's holding company
for any such reduction suffered.
(c)
A certificate of a Lender or an Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or IssuingBank or its holding
company, as applicable, as specified in clause (a) or (b) of this Section
shall be delivered to theBorrower and shall be conclusive absent manifest
error;
provided
, that any such certificate claiming amounts described in clause(x) or (y) of
the definition of "Change in Law" shall, in addition, state the basis upon
which such amount has beencalculated and certify that such Lender's or Issuing
Bank's demand for payment of such costs hereunder, and such method
ofallocation is not inconsistent with its treatment of other borrowers which,
as a credit matter, are similarly situated to the Borrowerand which are
subject to similar
101
provisions. The Borrower and the Co-Borrowershall pay such Lender or Issuing
Bank, as applicable, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d)
Promptly after any Lender or any Issuing Bank has determined that it will make
a request for increased compensation pursuant tothis Section 2.15, such Lender
or Issuing Bank shall notify the Borrower thereof. Failure or delay on the
part of any Lender or IssuingBank to demand compensation pursuant to this
Section 2.15 shall not constitute a waiver of such Lender's or Issuing
Bank'sright to demand such compensation;
provided
, that the Borrower shall not be required to compensate a Lender or an Issuing
Bankpursuant to this Section 2.15 for any increased costs or reductions
incurred more than 180 days prior to the date that such Lenderor Issuing Bank,
as applicable, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of suchLender's or Issuing Bank's intention
to claim compensation therefor;
provided
,
further
, that, if the Changein Law giving rise to such increased costs or reductions
is retroactive, then the 180 day period referred to above shall be extended
toinclude the period of retroactive effect thereof.
Section 2.16
Break Funding Payments
. In the event of (a) the payment of any principal of any SOFR Loan other than
on the last dayof an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any SOFR Loan otherthan on the
last day of the Interest Period applicable thereto, (c) the failure to borrow
(other than due to the default of the relevantLender), convert, continue or
prepay any SOFR Loan on the date specified in any notice delivered pursuant
hereto or (d) the assignmentof any SOFR Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuantto Section 2.19, then, in any such event, the Borrower and the
Co-Borrower shall compensate each Lender for the loss, cost and expenseattributa
ble to such event. In the case of a SOFR Loan, such loss, cost or expense to
any Lender shall be deemed to be the amount determinedby such Lender (it being
understood that the deemed amount shall not exceed the actual amount) to be
the excess, if any, of (i) theamount of interest that would have accrued on
the principal amount of such Loan had such event not occurred, at Term SOFR
that would havebeen applicable to such Loan, for the period from the date of
such event to the last day of the then current Interest Period therefor(or, in
the case of a failure to borrow, convert or continue a SOFR Loan, for the
period that would have been the Interest Period forsuch Loan), over (ii) the
amount of interest that would accrue on such principal amount for such period
at the interest rate whichsuch Lender would bid were it to bid, at the
commencement of such period, for deposits in Dollars of a comparable amount
and period fromother banks in the eurocurrency market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled
toreceive pursuant to this Section 2.16 shall be delivered to the Borrower and
the Co-Borrower and shall be conclusive absent manifesterror. The Borrower
shall pay such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.
Section 2.17
Taxes
. (a) Any and all payments made by or on behalf of a LoanParty under this
Agreement or any other Loan Document shall be made free and clear of, and
without deduction or withholding for or onaccount of, any Taxes;
provided
, that if a Loan Party, the Administrative Agent or any other applicable
withholding agent shallbe required by applicable Requirement of Law to deduct
or withhold any Taxes from such payments, then (i) the applicable
withholdingagent shall make such deductions or withholdings as are reasonably
determined by the applicable withholding agent to be required by anyapplicable
Requirement of Law, (ii) the applicable withholding agent shall timely pay the
full amount deducted or withheld to therelevant Governmental Authority within
the time allowed and in accordance with applicable Requirement of Law, and
(iii) to the extentwithholding or deduction is required to be made on account
of Indemnified Taxes or Other Taxes, the sum payable by the Loan Party shallbe
increased as necessary so that after all required deductions and withholdings
have been made (including deductions or withholdingsapplicable to additional
sums payable under this Section 2.17) the Administrative Agent or any Lender,
as applicable, receives anamount equal to the sum it would have received had
no such deductions or withholdings been made. Whenever any Indemnified Taxes
or Other
102
Taxes are payable by a Loan Party, as promptlyas possible thereafter, such
Loan Party shall send to the Administrative Agent for its own account or for
the account of a Lender, asthe case may be, a certified copy of an official
receipt (or other evidence acceptable to the Administrative Agent or such
Lender, actingreasonably) received by the Loan Party showing payment thereof.
Without duplication, after any payment of Taxes by any Loan Party or
theAdministrative Agent to a Governmental Authority as provided in this
Section 2.17, the Borrower shall deliver to the AdministrativeAgent for its
own account or for the account of a Lender, as the case may be, or the
Administrative Agent shall deliver to the Borrower,as the case may be, a copy
of a receipt issued by such Governmental Authority evidencing such payment, a
copy of any return required byapplicable Requirements of Law to report such
payment or other evidence of such payment reasonably satisfactory to the
Borrower or theAdministrative Agent, as the case may be.
(b)
The Borrower and the Co-Borrower shall timely pay any Other Taxes.
(c)
The Borrower and the Co-Borrower shall indemnify and hold harmless the
Administrative Agent and each Lender within 15 BusinessDays after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
imposed on the Administrative Agent orsuch Lender, as applicable, as the case
may be (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amountspayable under this Section 2.17), and any reasonable
expenses arising therefrom or with respect thereto, whether or not such
IndemnifiedTaxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate setting forthin
reasonable detail the basis and calculation of the amount of such payment or
liability delivered to the Borrower by a Lender or bythe Administrative Agent
(as applicable) on its own behalf or on behalf of a Lender shall be conclusive
absent manifest error.
(d)
Each Lender shall deliver to the Borrower and the Administrative Agent, at
such time or times reasonably requested by the Borroweror the Administrative
Agent, such properly completed and executed documentation prescribed by
applicable law and such other reasonablyrequested information as will permit
the Borrower or the Administrative Agent, as the case may be, to determine (A)
whether or notany payments made hereunder or under any other Loan Document are
subject to withholding of Taxes, (B) if applicable, the requiredrate of
withholding or deduction, and (C) such Lender's entitlement to any available
exemption from, or reduction of, any suchwithholding of Taxes in respect of
any payments to be made to such Lender by any Loan Party pursuant to any Loan
Document or otherwiseto establish such Lender's status for withholding tax
purposes in the applicable jurisdiction. In addition, any Lender, if
requestedby the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requestedby the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lenderis subject to
backup withholding or information reporting requirements.
(e)
Without limiting the generality of Section 2.17(d), each Foreign Lender with
respect to any Loan made to the Borrower shall,to the extent it is legally
eligible to do so:
(i)
deliver to the Borrower and the Administrative Agent, prior to the date on
which the first payment to the Foreign Lender is duehereunder, two copies of
(A) in the case of a Foreign Lender claiming exemption from U.S. federal
withholding tax under Section 871(h)or 881(c) of the Code with respect to
payments of "portfolio interest," United States Internal Revenue Service Form
W-8BENor W-8BEN-E, as applicable (or any applicable successor form) (together
with a certificate (substantially in the form of Exhibit Hhereto, such
certificate, the "
Non-Bank Tax Certificate
") certifying that such Foreign Lender is not a bank for purposesof Section
881(c) of the Code, is not a "10-percent shareholder" (within the meaning of
Section 871(h)(3)(B) ofthe Code) of the Borrower and is not a CFC related to
the Borrower (within the meaning of Section 864(d)(4) of the Code), and
thatthe interest payments in question are not
103
effectively connected with the conductby such Lender of a trade or business
within the United States of America), (B) Internal Revenue Service Form W-8BEN
or W-8BEN-E,as applicable, or Form W-8ECI (or any applicable successor form),
in each case properly completed and duly executed by such Foreign
Lenderclaiming complete exemption from, or reduced rate of, U.S. federal
withholding tax on payments by the Borrower under this Agreement, (C)
InternalRevenue Service Form W-8IMY (or any applicable successor form) and all
necessary attachments (including the forms described in clauses(A) and (B)
above, provided that if the Foreign Lender is a partnership, and one or more
of the partners is claiming portfoliointerest treatment, the Non-Bank Tax
Certificate may be provided by such Foreign Lender on behalf of such partners)
or (D) any otherform prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States federal withholding tax
dulycompleted together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower or the AdministrativeAgent
to determine the withholding or deduction required to be made; and
(ii)
deliver to the Borrower and the Administrative Agent two further copies of any
such form or certification (or any applicable successorform) on or before the
date that any such form or certification expires or becomes obsolete or
invalid, after the occurrence of any eventrequiring a change in the most
recent form previously delivered by it to the Borrower and the Administrative
Agent, and from time to timethereafter if reasonably requested by the Borrower
or the Administrative Agent.
Any Foreign Lender thatbecomes legally ineligible to update any form or
certification previously delivered shall promptly notify the Borrower and the
AdministrativeAgent in writing of such Foreign Lender's inability to do so.
Each person that shallbecome a Participant pursuant to Section 9.04 or a
Lender pursuant to Section 9.04 shall, upon the effectiveness of the
relatedtransfer, be required to provide all the forms and statements required
pursuant to this Section 2.17(e);
provided
that a Participantshall furnish all such required forms and statements to the
person from which the related participation shall have been purchased.
In addition, each Agentshall deliver to the Borrower (x)(I) prior to the date
on which the first payment by the Borrower is due hereunder or (II) prior to
thefirst date on or after the date on which such Agent becomes a successor
Administrative Agent pursuant to Section 8.09 on which paymentby the Borrower
is due hereunder, as applicable, two copies of a properly completed and
executed IRS Form W-9 certifying its exemptionfrom U.S. federal backup
withholding or such other properly completed and executed documentation
prescribed by applicable law certifyingits entitlement to an available
exemption from applicable U.S. federal withholding taxes in respect of any
payments to be made to suchAgent by any Loan Party pursuant to any Loan
Document including, as applicable, an IRS Form W-8IMY certifying that the
Agent is a U.S.branch and intends to be treated as a U.S. person for purposes
of withholding under Chapter 3 of the Code pursuant to Section 1.1441-1(b)(2)(iv
) ofthe Treasury Regulations, and (y) on or before the date on which any such
previously delivered documentation expires or becomes obsoleteor invalid,
after the occurrence of any event requiring a change in the most recent
documentation previously delivered by it to the Borrower,and from time to time
if reasonably requested by the Borrower, two further copies of such
documentation.
(f)
If any Lender or the Administrative Agent, as applicable, determines, in its
sole discretion, that it has received a refund ofan Indemnified Tax or Other
Tax for which a payment has been made by a Loan Party pursuant to this
Agreement or any other Loan Document,which refund in the good faith judgment
of such Lender or the Administrative Agent, as the case may be, is
attributable to such paymentmade by such Loan Party, then the Lender or the
Administrative Agent,
104
as the case may be, shall reimbursethe Loan Party for such amount (net of all
reasonable out-of-pocket expenses of such Lender or the Administrative Agent,
as the case maybe, and without interest other than any interest received
thereon from the relevant Governmental Authority with respect to such
refund)as the Lender or Administrative Agent, as the case may be, determines
in its sole discretion to be the proportion of the refund as willleave it,
after such reimbursement, in no better or worse position (taking into account
expenses or any Taxes imposed on the refund) thanit would have been in if the
Indemnified Tax or Other Tax giving rise to such refund had not been imposed
in the first instance;
provided
that the Loan Party, upon the request of the Lender or the Administrative
Agent 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 Lender or the Administrative Agentin the event the Lender or
the Administrative Agent is required to repay such refund to such Governmental
Authority. In such event, suchLender or the Administrative Agent, as the case
may be, shall, at the Borrower's request, provide the Borrower with a copy of
anynotice of assessment or other evidence of the requirement to repay such
refund received from the relevant Governmental Authority (
provided
that such Lender or the Administrative Agent may delete any information
therein that it deems confidential). A Lender or the AdministrativeAgent shall
claim any refund that it determines is available to it, unless it concludes in
its sole discretion that it would be adverselyaffected by making such a claim.
No Lender nor the Administrative Agent shall be obliged to make available its
tax returns (or any otherinformation relating to its taxes that it deems
confidential) to any Loan Party in connection with this clause (f) or any
other provisionof this Section 2.17.
(g)
If the Borrower determines that a reasonable basis exists for contesting an
Indemnified Tax or Other Tax for which a Loan Partyhas paid additional amounts
or indemnification payments, each affected Lender or Agent, as the case may
be, shall use reasonable effortsto cooperate with the Borrower as the Borrower
may reasonably request in challenging such Tax. The Borrower and the
Co-Borrower shallindemnify and hold each Lender and Agent harmless against any
out-of-pocket expenses incurred by such person in connection with any
requestmade by the Borrower pursuant to this Section 2.17(g). Nothing in this
Section 2.17(g) shall obligate any Lender or Agent totake any action that such
person, in its sole judgment, determines may result in a material detriment to
such person.
(h)
Each U.S. Lender shall deliver to the Borrower and the Administrative Agent
two Internal Revenue Service Forms W-9 (or substituteor successor form),
properly completed and duly executed, certifying that such U.S. Lender is
exempt from United States federal backupwithholding (i) on or prior to the
Closing Date (or on or prior to the date it becomes a party to this
Agreement), (ii) on orbefore the date that such form expires or becomes
obsolete or invalid, (iii) after the occurrence of a change in the U.S.
Lender'scircumstances requiring a change in the most recent form previously
delivered by it to the Borrower and the Administrative Agent, and(iv) from
time to time thereafter if reasonably requested by the Borrower or the
Administrative Agent.
(i)
If a payment made to any Lender or any Agent under this Agreement or any other
Loan Document would be subject to U.S. federal withholdingtax imposed by FATCA
if such Lender or such Agent were to fail to comply with the applicable
reporting requirements of FATCA (includingthose contained in Section 1471(b)
or 1472(b) of the Code, as applicable), such Lender or such Agent shall
deliver to the Borrowerand the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by the
Borrower orthe Administrative Agent such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) ofthe
Code) and such additional documentation reasonably requested by the Borrower
or the Administrative Agent as may be necessary for theBorrower and the
Administrative Agent to comply with their obligations under FATCA, to
determine whether such Lender has or has not compliedwith such Lender's
obligations under FATCA or to determine the amount, if any, to
105
deduct and withhold from such payment.Solely for purposes of this Section
2.17(i), "FATCA" shall include any amendments made to FATCA after the Closing
Date.
(j)
The agreements in this Section 2.17 shall survive the termination of this
Agreement and the payment of the Loans and all otheramounts payable under any
Loan Document.
For purposes of this Section 2.17,the term "Lender" includes any Issuing Bank
and the terms "applicable law" and "applicable Requirement ofLaw" include
FATCA.
Section 2.18
Payments Generally; Pro Rata Treatment; Sharing of Set-offs
. (a) Unlessotherwise specified, the Borrower and each Co-Borrower shall make
each payment required to be made by it hereunder (whether of principal,interest,
fees or reimbursement of L/C Disbursements, or of amounts payable under
Sections 2.15, 2.16 or 2.17, or otherwise) priorto (x) with respect to all
payments made in Dollars, 2:00 p.m., New York City Time, (y) with respect to
all payments made in AlternateCurrencies (other than Canadian Dollars), 8:00
a.m., New York City Time and (z) with respect to all payments made in Canadian
Dollars,1:00 p.m., New York City Time, in each case, on the date when due, in
immediately available funds. Each such payment shall be made withoutcondition
or deduction for any defense, recoupment, set-off or counterclaim. Any amounts
received after such time on any date may, inthe discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculatinginterest thereon. All such payments
shall be made to the Administrative Agent to the applicable account designated
to the Borrower bythe Administrative Agent, except payments to be made
directly to the applicable Issuing Bank or the Swingline Lender as expressly
providedherein and except that payments pursuant to Sections 2.15, 2.16, 2.17
and 9.05 shall be made directly to the persons entitled thereto.The
Administrative Agent shall distribute any such payments received by it for the
account of any other person to the appropriate recipientpromptly following
receipt thereof. Except as otherwise expressly provided herein, if any payment
hereunder shall be due on a day thatis not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruinginterest, interest thereon shall be payable for
the period of such extension. All payments made under the Loan Documents shall
be madein Dollars (or in the case of Alternate Currency Loans or Alternate
Currency Letters of Credit, in the applicable Alternate Currency).Any payment
required to be made by the Administrative Agent hereunder shall be deemed to
have been made by the time required if the AdministrativeAgent shall, at or
before such time, have taken the necessary steps to make such payment in
accordance with the regulations or operatingprocedures of the clearing or
settlement system used by the Administrative Agent to make such payment.
(b)
Subject to Section 7.02, if at any time insufficient funds are received by and
available to the Administrative Agent fromthe Borrower or the Co-Borrowers to
pay fully all amounts of principal, unreimbursed L/C Disbursements, interest
and fees then due fromthe Borrower and the Co-Borrowers hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then duefrom
the Borrower and the Co-Borrowers hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interestand fees then due
to such parties, (ii) second, towards payment of principal of Swingline Loans
and unreimbursed L/C Disbursementsthen due from the Borrower and the
Co-Borrowers hereunder, ratably among the parties entitled thereto in
accordance with the amounts ofprincipal and unreimbursed L/C Disbursements
then due to such parties, and (iii) third, towards payment of principal then
due fromthe Borrower and the Co-Borrowers hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal thendue to such
parties.
(c)
If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principalof, or interest on, any
of its Term Loans, Revolving Facility Loans or participations in L/C
Disbursements of a given Class or SwinglineLoans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Term
106
Loans, Revolving Facility Loans andparticipations in L/C Disbursements of such
Class and Swingline Loans and accrued interest thereon than the proportion
received by anyother Lender entitled to receive the same proportion of such
payment, then the Lender receiving such greater proportion shall purchasepartici
pations in the Term Loans, Revolving Facility Loans and participations in L/C
Disbursements of such Class and Swingline Loans ofsuch other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
all such Lenders ratably in accordancewith the principal amount of each such
Lender's respective Term Loans, Revolving Facility Loans and participations in
L/C Disbursementsof such Class and Swingline Loans and accrued interest
thereon;
provided
, that (i) if any such participations are purchasedand all or any portion of
the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase pricerestored to the extent of such recovery,
without interest, and (ii) the provisions of this clause (c) shall not be
construedto apply to any payment made by the Borrower or any Co-Borrower
pursuant to and in accordance with the express terms of this Agreementor any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or participationsin L/C Disbursements to
any assignee or participant. The Borrower and the Co-Borrower consents to the
foregoing and agrees, to the extentit may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exerciseagainst the Borrower or the Co-Borrower rights of
set-off and counterclaim with respect to such participation as fully as if
such Lenderwere a direct creditor of the Borrower or such Co-Borrower in the
amount of such participation.
(d)
Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to theAdministrative Agent for
the account of the Lenders or the applicable Issuing Bank hereunder that the
Borrower or the Co-Borrower willnot make such payment, the Administrative
Agent may assume that the Borrower or the Co-Borrower has made such payment on
such date inaccordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the applicable Issuing Bank, as applicable,the
amount due. In such event, if the Borrower or the Co-Borrower has not in fact
made such payment, then each of the Lenders or the applicableIssuing Bank, as
applicable, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to suchLender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed
to it to but excludingthe date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
AdministrativeAgent in accordance with banking industry rules on interbank
compensation.
(e)
If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(b), 2.05(d) or (e), 2.06 or2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafterreceived by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations
under such Sections untilall such unsatisfied obligations are fully paid.
Section 2.19
Mitigation Obligations; Replacement of Lenders
. (a) If any Lender requestscompensation under Section 2.15, or if the
Borrower or the Co-Borrower is required to pay any additional amount to any
Lender orany Governmental Authority for the account of any Lender pursuant to
Section 2.17 or any event that gives rise to the operation ofSection 2.20,
then such Lender shall use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunderor to assign its rights and
obligations hereunder to another of its offices, branches or Affiliates, if,
in the reasonable judgment ofsuch Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17
ormitigate the applicability of Section 2.20, as applicable, in the future and
(ii) would not subject such Lender to any material unreimbursedcost or expense
and would not otherwise be disadvantageous to such Lender in any material
respect. The Borrower and the Co-Borrower herebyagrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
107
(b)
If (i) any Lender requests compensation under Section 2.15 or gives notice
under Section 2.20, (ii) the Borrower or the Co-Borroweris required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17,or (iii) any Lender is a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and theAdministrative Agent, require any such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictionscontained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume
suchobligations (which assignee may be another Lender, if a Lender accepts
such assignment);
provided
that (i) the Borrower shallhave received the prior written consent of the
Administrative Agent (and, if in respect of any Revolving Facility Commitment
or RevolvingFacility Loan, the Swingline Lender and the Issuing Bank), to the
extent consent would be required under Section 9.04(b) for an assignmentof
Loans or Commitments, as applicable, which consent, in each case, shall not
unreasonably be withheld, (ii) such Lender shall havereceived payment of an
amount equal to the outstanding principal of its Loans and participations in
L/C Disbursements and Swingline Loans,accrued interest thereon, accrued fees
and all other amounts payable to it hereunder from the assignee (to the extent
of such outstandingprincipal and accrued interest and fees) or the Borrower or
the Co-Borrower (in the case of all other amounts) and (iii) in the caseof any
such assignment resulting from a claim for compensation under Section 2.15,
payments required to be made pursuant to Section 2.17or a notice given under
Section 2.20, such assignment will result in a reduction in such compensation
or payments. Nothing in this Section 2.19shall be deemed to prejudice any
rights that the Borrower may have against any Lender that is a Defaulting
Lender. No action by or consentof the removed Lender shall be necessary in
connection with such assignment, which shall be immediately and automatically
effective uponpayment of such purchase price. In connection with any such
assignment the Borrower, Administrative Agent, such removed Lender and
thereplacement Lender shall otherwise comply with Section 9.04, provided, that
if such removed Lender does not comply with Section 9.04within one Business
Day after the Borrower's request, compliance with Section 9.04 shall not be
required to effect such assignment.
(c)
If any Lender (such Lender, a "
Non-Consenting Lender
") has failed to consent to a proposed amendment, waiver,discharge or
termination which pursuant to the terms of Section 9.08 requires the consent
of all of the Lenders affected and withrespect to which the Required Lenders
shall have granted their consent, then the Borrower shall have the right
(unless such Non-ConsentingLender grants such consent) at its sole expense
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)(ii)(B))to replace such Non-Consenting Lender by requiring such
Non-Consenting Lender to (and any such Non-Consenting Lender agrees that it
shall,upon the Borrower's request) assign its Loans and its Commitments (or,
at the Borrower's option, the Loans and Commitmentsunder the Facility that is
the subject of the proposed amendment, waiver, discharge or termination)
hereunder to one or more assigneesreasonably acceptable to (i) the
Administrative Agent (unless such assignee is a Lender, an Affiliate of a
Lender or an ApprovedFund) and (ii) if in respect of any Revolving Facility
Commitment or Revolving Facility Loan, the Swingline Lender and the
IssuingBanks;
provided
, that: (a) all Loan Obligations of the Borrower and the Co-Borrower owing to
such Non-Consenting Lender beingreplaced shall be paid in full to such
Non-Consenting Lender concurrently with such assignment, (b) the replacement
Lender shallpurchase the foregoing by paying to such Non-Consenting Lender a
price equal to the principal amount thereof
plus
accrued and unpaidinterest thereon and the replacement Lender or, at the
option of the Borrower, the Borrower shall pay any amount required by Section
2.12(d)(y),if applicable, and (c) the replacement Lender shall grant its
consent with respect to the applicable proposed amendment, waiver,discharge or
termination. No action by or consent of the Non-Consenting Lender shall be
necessary in connection with such assignment,which shall be immediately and
automatically effective upon payment of such purchase price. In connection
with any such assignment theBorrower, Administrative Agent, such Non-Consenting
Lender and the replacement Lender shall otherwise comply with Section 9.04;
provided
,
108
that if such Non-Consenting Lender doesnot comply with Section 9.04 within one
Business Day after the Borrower's request, compliance with Section 9.04
shallnot be required to effect such assignment.
Section 2.20
Illegality
. If any Lender reasonably determines that any Change in Law has made it
unlawful, or that any Governmental Authorityhas asserted after the Closing
Date that it is unlawful, for any Lender or its applicable Lending Office to
make or maintain any SOFRLoans, then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, any obligations of such Lender to
makeor continue SOFR Loans or to convert ABR Borrowings to SOFR Borrowings
shall be suspended until such Lender notifies the AdministrativeAgent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrowershall upon demand from such
Lender (with a copy to the Administrative Agent), convert all SOFR Borrowings
(including any Alternate CurrencyLoans) of such Lender to Dollar-denominated
ABR Borrowings, either on the last day of the Interest Period therefor, if
such Lender maylawfully continue to maintain such SOFR Borrowings to such day,
or immediately, if such Lender may not lawfully continue to maintain
suchLoans. Upon any such prepayment or conversion, the Borrower and the
Co-Borrower shall also pay accrued interest on the amount so converted.
Section 2.21
Incremental Commitments
. (a) The Borrower or any Co-Borrower may,by written notice to the
Administrative Agent from time to time, request Incremental Term Loan
Commitments and/or Incremental RevolvingFacility Commitments, as applicable,
in an amount not to exceed the Incremental Amount available at the time such
Incremental Commitmentsare established (or, at the option of the Borrower or
such Co-Borrower, at the time of incurrence of the Incremental Loans
thereunder)from one or more Incremental Term Lenders and/or Incremental
Revolving Facility Lenders (which may include any existing Lender) willingto
provide such Incremental Term Loans and/or Incremental Revolving Facility
Commitments, as the case may be, in their own discretion;
provided
, that each Incremental Revolving Facility Lender providing a commitment to
make revolving loans shall be subject to theapproval of the Administrative
Agent and, to the extent the same would be required for an assignment under
Section 9.04, the IssuingBanks and the Swingline Lender (which approvals shall
not be unreasonably withheld) unless such Incremental Revolving Facility
Lenderis a Revolving Facility Lender. Such notice shall set forth (i) the
amount of the Incremental Term Loan Commitments and/or IncrementalRevolving
Facility Commitments being requested (which shall be in minimum increments of
$5,000,000 and a minimum amount of $10,000,000,or equal to the remaining
Incremental Amount or, in each case, such lesser amount approved by the
Administrative Agent), (ii) thedate on which such Incremental Term Loan
Commitments and/or Incremental Revolving Facility Commitments are requested to
become effective,(iii) in the case of Incremental Revolving Facility
Commitments, whether such Incremental Revolving Facility Commitments are to
be(x) commitments to make additional Revolving Facility Loans on the same
terms as the 2021 Revolving Loans or (y) commitmentsto make revolving loans
with pricing terms, final maturity dates, participation in mandatory
prepayments or commitment reductions and/orother terms different from the 2021
Revolving Loans ("
Other Revolving Loans"
) and (iv) in the case of IncrementalTerm Loan Commitments, whether such
Incremental Term Loan Commitments are to be (x) commitments to make term loans
with terms identicalto Term B-1 Loans or (y) commitments to make term loans
with pricing, maturity, amortization, participation in mandatory prepaymentsand/
or other terms different from the Term B-1 Loans ("
Other Term Loans
").
(b)
The Borrower, each applicable Co-Borrower and each Incremental Term Lender
and/or Incremental Revolving Facility Lender shall executeand deliver to the
Administrative Agent an Incremental Assumption Agreement and such other
documentation as the Administrative Agent shallreasonably specify to evidence
the Incremental Term Loan Commitment of such Incremental Term Lender and/or
Incremental Revolving FacilityCommitment of such Incremental Revolving
Facility Lender. Each Incremental Assumption Agreement shall specify the terms
of the
109
applicable Incremental Term Loans and/orIncremental Revolving Facility
Commitments;
provided
, that:
(i)
any commitments to make additional Term B-1 Loans and/or 2021 Revolving Loans
shall have the same terms as the Term B-1 Loans or2021 Revolving Loans,
respectively;
(ii)
the Other Term Loans incurred pursuant to clause (a) of this Section 2.21
shall rank pari passu or, at the option of the Borrower,junior in right of
security with the Term B-1 Loans (
provided
, that if such Other Term Loans rank junior in right of security withthe Term
B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior
Intercreditor Agreement and, for the avoidance of doubt,shall not be subject
to clause (vii) below);
(iii)
the final maturity date of any such Other Term Loans shall be no earlier than
the Term B-1 Facility Maturity Date and, except asto pricing, amortization,
final maturity date, participation in mandatory prepayments and ranking as to
security (which shall, subjectto the other clauses of this proviso, be
determined by the Borrower and the Incremental Term Lenders in their sole
discretion), shallhave (x) substantially similar terms as the Term B-1 Loans
or (y) such other terms (including as to guarantees and collateral)as shall be
reasonably satisfactory to the Administrative Agent;
(iv)
the Weighted Average Life to Maturity of any such Other Term Loans shall be no
shorter than the remaining Weighted Average Lifeto Maturity of the Term B-1
Loans;
(v)
the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21
shall rank pari passu or, at the option ofthe Borrower, junior in right of
security with the 2021 Revolving Loans (
provided
, that if such Other Revolving Loans rank juniorin right of security with the
2021 Revolving Loans, such Other Revolving Loans shall be subject to a
Permitted Junior Intercreditor Agreement);
(vi)
the final maturity date of any such Other Revolving Loans shall be no earlier
than the 2021 Revolving Facility Maturity Date and,except as to pricing, final
maturity date, participation in mandatory prepayments and commitment
reductions and ranking as to security(which shall, subject to the other
clauses of this proviso, be determined by the Borrower and the Incremental
Revolving Facility Lendersin their sole discretion), shall have (x)
substantially similar terms as the 2021 Revolving Loans or (y) such other
terms (includingas to guarantees and collateral) as shall be reasonably
satisfactory to the Administrative Agent;
(vii)
with respect to any Other Term Loan incurred pursuant to clause (a) of this
Section 2.21 that ranks pari passu in right ofsecurity with the Term B-1
Loans, the All-in Yield shall be the same as that applicable to the Term B-1
Loans on the Closing Date, exceptthat the All-in Yield in respect of any such
Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans
on the ClosingDate by no more than 0.50%, or if it does so exceed such All-in
Yield by more than 0.50% (such difference, the "
Term Yield Differential
")then the Applicable Margin (or the "SOFR floor" as provided in the following
proviso) applicable to the Term B-1 Loans shallbe increased such that after
giving effect to such increase, the Term Yield Differential shall not exceed
0.50%;
provided
that,to the extent any portion of the Term Yield Differential is attributable
to a higher "SOFR floor" being applicable to suchOther Term Loans, such floor
shall only be included in the calculation of the Term Yield Differential to
the extent such floor is greaterthan the Adjusted Term SOFR in effect for an
Interest Period of three months' duration at such time, and, with respect to
such excess,the "SOFR floor" applicable to the outstanding Term B-1 Loans
shall be increased to an amount not to exceed the "SOFRfloor" applicable to
such Other
110
Term Loans prior to any increase in theApplicable Margin applicable to such
Term B-1 Loans then outstanding;
(viii)
(A) such Other Revolving Loans may participate on a pro rata basis or a less
than pro rata basis (but not a greater than pro ratabasis) than the 2021
Revolving Loans in (x) any voluntary or mandatory prepayment or commitment
reduction hereunder and (y) anyBorrowing at the time such Borrowing is made
and (B) such Other Term Loans may participate on a pro rata basis or a less
than prorata basis (but not a greater than pro rata basis) than the Term B-1
Loans in any mandatory prepayment hereunder;
(ix)
there shall be no obligor in respect of any Incremental Term Loan Commitments
or Incremental Revolving Facility Commitments thatis not a Loan Party; and
(x)
any such Other Term Loans or Other Revolving Loans may include financial
maintenance covenants in addition to, or more onerousthan, the Financial
Covenant (each, a "
Previously Absent Financial Maintenance Covenant
") so long as (x) with respectto Other Revolving Loans, such Previously Absent
Financial Maintenance Covenant shall automatically apply to the Revolving
Facilitiesand (y) with respect to Other Term Loans, such Previously Absent
Financial Maintenance Covenant shall automatically apply to the Facilities,in
each case, without the consent of any other party hereto.
Each party hereto hereby agrees that, uponthe effectiveness of any Incremental
Assumption Agreement, this Agreement shall be amended to the extent (but only
to the extent) necessaryto reflect the existence and terms of the Incremental
Term Loan Commitments and/or Incremental Revolving Facility Commitments
evidencedthereby as provided for in Section 9.08(e). Any amendment to this
Agreement or any other Loan Document that is necessary to effectthe provisions
of this Section 2.21 and any such collateral and other documentation shall be
deemed "Loan Documents"hereunder and may be memorialized in writing by the
Administrative Agent with the Borrower's consent (not to be unreasonably
withheld)and furnished to the other parties hereto.
(c)
Notwithstanding the foregoing, no Incremental Term Loan Commitment or
Incremental Revolving Facility Commitment shall become effectiveunder this
Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent
required by the relevant IncrementalAssumption Agreement, the conditions set
forth in clause (c) of Section 4.01 shall be satisfied and the Administrative
Agent shallhave received a certificate to that effect dated such date and
executed by a Responsible Officer of the Borrower and (B) if such
IncrementalTerm Loan Commitment or Incremental Revolving Facility Commitment
is established for a purpose other than financing any Permitted BusinessAcquisit
ion or any other acquisition that is permitted by this Agreement, no Event of
Default under Section 7.01(b), (c), (h) or (i) shallhave occurred and be
continuing or would result therefrom and (ii) the Administrative Agent shall
have received customary legal opinions,board resolutions and other customary
closing certificates and documentation as required by the relevant Incremental
Assumption Agreementand, to the extent required by the Administrative Agent,
consistent with those delivered on the Closing Date pursuant to the First
IncrementalAssumption and Amendment Agreement and such additional customary
documents and filings (including amendments to the Mortgages and otherSecurity
Documents and title endorsement bringdowns) as the Administrative Agent may
reasonably request to assure that the IncrementalTerm Loans and/or Revolving
Facility Loans in respect of Incremental Revolving Facility Commitments are
secured by the Collateral ratablywith (or, to the extent set forth in the
applicable Incremental Assumption Agreement, junior to) one or more Classes of
then-existingTerm Loans and Revolving Facility Loans.
(d)
Each of the parties hereto hereby agrees that the Administrative Agent may
take any and all action as may be reasonably necessaryto ensure that (i) all
Incremental Term Loans
111
(other than Other Term Loans of a differentClass), when originally made, are
included in each Borrowing of the outstanding applicable Class of Term Loans
on a pro rata basis, and(ii) all Revolving Facility Loans in respect of
Incremental Revolving Facility Commitments (other than Revolving Facility
Loans ofa different Class), when originally made, are included in each
Borrowing of the applicable Class of outstanding Revolving Facility Loanson a
pro rata basis. The Borrower agrees that Section 2.16 shall apply to any
conversion of SOFR Loans to ABR Loans reasonably requiredby the Administrative
Agent to effect the foregoing.
(e)
Notwithstanding anything to the contrary in this Agreement, including Section
2.18(c) (which provisions shall not be applicableto clauses (e) through (i) of
this Section 2.21), pursuant to one or more offers made from time to time by
the Borrowerto all Lenders of any Class of Term Loans and/or Revolving
Facility Commitments, on a pro rata basis (based, in the case of an offer
tothe Lenders under any Class of Term Loans, on the aggregate outstanding Term
Loans of such Class and, in the case of an offer to the Lendersunder any
Revolving Facility, on the aggregate outstanding Revolving Facility
Commitments under such Revolving Facility, as applicable)and on the same terms
("
Pro Rata Extension Offers
"), the Borrower is hereby permitted to consummate transactions withindividual
Lenders from time to time to extend the maturity date of such Lender's Loans
and/or Commitments of such Class and tootherwise modify the terms of such
Lender's Loans and/or Commitments of such Class pursuant to the terms of the
relevant Pro RataExtension Offer (including, without limitation, increasing
the interest rate or fees payable in respect of such Lender's Loans
and/orCommitments and/or modifying the amortization schedule in respect of
such Lender's Loans). For the avoidance of doubt, the referenceto "on the same
terms" in the preceding sentence shall mean, (i) in the case of an offer to
the Lenders under any Classof Term Loans, that all of the Term Loans of such
Class are offered to be extended for the same amount of time and that the
interest ratechanges and fees payable with respect to such extension are the
same and (ii) in the case of an offer to the Lenders under any RevolvingFacility
, that all of the Revolving Facility Commitments of such Facility are offered
to be extended for the same amount of time and thatthe interest rate changes
and fees payable with respect to such extension are the same. Any such
extension (an "
Extension
")agreed to between the Borrower and any such Lender (an "
Extending Lender
") will be established under this Agreementby implementing an Incremental Term
Loan for such Lender if such Lender is extending an existing Term Loan (such
extended Term Loan, an"
Extended Term Loan
") or an Incremental Revolving Facility Commitment for such Lender if such
Lender is extending anexisting Revolving Facility Commitment (such extended
Revolving Facility Commitment, an "
Extended Revolving Facility Commitment
"and the loans thereunder, "
Extended Revolving Loans
"). Each Pro Rata Extension Offer shall specify the date on whichthe Borrower
proposes that the Extended Term Loan shall be made, which shall be a date not
earlier than five Business Days after the dateon which notice is delivered to
the Administrative Agent (or such shorter period agreed to by the
Administrative Agent in its reasonablediscretion).
(f)
The Borrower, each applicable Co-Borrower and each Extending Lender shall
execute and deliver to the Administrative Agent an IncrementalAssumption
Agreement and such other documentation as the Administrative Agent shall
reasonably specify to evidence the Extended Term Loansand/or Extended
Revolving Facility Commitments of such Extending Lender. Each Incremental
Assumption Agreement shall specify the termsof the applicable Extended Term
Loans and/or Extended Revolving Facility Commitments;
provided
, that (i) except as to interestrates, fees and any other pricing terms (which
interest rates, fees and other pricing terms shall not be subject to the
provisions setforth in Section 2.21(b)(vii)), and amortization, final maturity
date and participation in prepayments and commitment reductions (whichshall,
subject to clauses (ii) and (iii) of this proviso, be determined by the
Borrower and set forth in the Pro Rata ExtensionOffer), the Extended Term
Loans shall have (x) the same terms as an existing Class of Term Loans or (y)
such other terms asshall be reasonably satisfactory to the Administrative
Agent, (ii) the final maturity date of any Extended Term Loans shall be
noearlier than the latest Term Facility Maturity Date in effect on the date of
incurrence, (iii) the
112
Weighted Average Life to Maturity ofany Extended Term Loans shall be no
shorter than the remaining Weighted Average Life to Maturity of the Class of
Term Loans to which suchoffer relates, (iv) except as to interest rates, fees,
any other pricing terms, participation in mandatory prepayments and
commitmentreductions and final maturity (which shall be determined by the
Borrower and set forth in the Pro Rata Extension Offer), any ExtendedRevolving
Facility Commitment shall have (x) the same terms as an existing Class of
Revolving Facility Commitments or (y) havesuch other terms as shall be
reasonably satisfactory to the Administrative Agent and, in respect of any
other terms that would affectthe rights or duties of any Issuing Bank or
Swingline Lender, such terms as shall be reasonably satisfactory to such
Issuing Bank or SwinglineLender, (v) any Extended Revolving Facility
Commitments may participate on a pro rata basis or a less than pro rata basis
(but notgreater than a pro rata basis) than the 2021 Revolving Loans in any
voluntary or mandatory prepayment or commitment reduction hereunderand (vi)
any Extended Term Loans may participate on a pro rata basis or a less than pro
rata basis (but not a greater than pro ratabasis) than the Term B-1 Loans in
any mandatory prepayment hereunder. Upon the effectiveness of any Incremental
Assumption Agreement,this Agreement shall be amended to the extent (but only
to the extent) necessary to reflect the existence and terms of the Extended
TermLoans and/or Extended Revolving Facility Commitments evidenced thereby as
provided for in Section 9.08(e). Any such deemed amendmentmay be memorialized
in writing by the Administrative Agent with the Borrower's consent (not to be
unreasonably withheld) and furnishedto the other parties hereto. If provided
in any Incremental Assumption Agreement with respect to any Extended Revolving
Facility Commitments,and with the consent of each Swingline Lender and Issuing
Bank, participations in Swingline Loans and Letters of Credit shall be
reallocatedto lenders holding such Extended Revolving Facility Commitments in
the manner specified in such Incremental Assumption Agreement, includingupon
effectiveness of such Extended Revolving Facility Commitment or upon or prior
to the maturity date for any Class of Revolving FacilityCommitments.
(g)
Upon the effectiveness of any such Extension, the applicable Extending
Lender's Term Loan will be automatically designatedan Extended Term Loan
and/or such Extending Lender's Revolving Facility Commitment will be
automatically designated an ExtendedRevolving Facility Commitment. For
purposes of this Agreement and the other Loan Documents, (i) if such Extending
Lender is extendinga Term Loan, such Extending Lender will be deemed to have
an Incremental Term Loan having the terms of such Extended Term Loan and (ii)
ifsuch Extending Lender is extending a Revolving Facility Commitment, such
Extending Lender will be deemed to have an Incremental RevolvingFacility
Commitment having the terms of such Extended Revolving Facility Commitment.
(h)
Notwithstanding anything to the contrary set forth in this Agreement or any
other Loan Document (including, without limitation,this Section 2.21), (i) the
aggregate amount of Extended Term Loans and Extended Revolving Facility
Commitments will not beincluded in the calculation of the Incremental Amount,
(ii) no Extended Term Loan or Extended Revolving Facility Commitment is
requiredto be in any minimum amount or any minimum increment, (iii) any
Extending Lender may extend all or any portion of its Term Loansand/or
Revolving Facility Commitment pursuant to one or more Pro Rata Extension
Offers (subject to applicable proration in the case ofover participation)
(including the extension of any Extended Term Loan and/or Extended Revolving
Facility Commitment), (iv) thereshall be no condition to any Extension of any
Loan or Commitment at any time or from time to time other than notice to the
AdministrativeAgent of such Extension and the terms of the Extended Term Loan
or Extended Revolving Facility Commitment implemented thereby, (v) allExtended
Term Loans, Extended Revolving Facility Commitments and all obligations in
respect thereof shall be Loan Obligations of the relevantLoan Parties under
this Agreement and the other Loan Documents that are secured by the Collateral
on a pari passu basis with all otherObligations relating to an existing Class
of Term Loans of the relevant Loan Parties under this Agreement and the other
Loan Documents,(vi) no Issuing Bank or Swingline Lender shall be obligated to
provide Swingline
113
Loans or issue Letters of Credit undersuch Extended Revolving Facility
Commitments unless it shall have consented thereto and (vii) there shall be no
obligor in respect ofany such Extended Term Loans or Extended Revolving
Facility Commitments that is not a Loan Party.
(i)
Each Extension shall be consummated pursuant to procedures set forth in the
associated Pro Rata Extension Offer;
provided
,that the Borrower shall cooperate with the Administrative Agent prior to
making any Pro Rata Extension Offer to establish reasonable procedureswith
respect to mechanical provisions relating to such Extension, including,
without limitation, timing, rounding and other adjustments.
(j)
Notwithstanding anything to the contrary in this Agreement, including Section
2.18(c) (which provisions shall not be applicableto clauses (j) through (o) of
this Section 2.21), the Borrower may by written notice to the Administrative
Agent establish oneor more additional tranches of term loans under this
Agreement (such loans, "
Refinancing Term Loans
"), the net cashproceeds of which are used to Refinance in whole or in part
any Class of Term Loans. Each such notice shall specify the date (each, a"
Refinancing Effective Date
") on which the Borrower proposes that the Refinancing Term Loans shall be
made, which shallbe a date not earlier than five Business Days after the date
on which such notice is delivered to the Administrative Agent (or such
shorterperiod agreed to by the Administrative Agent in its reasonable
discretion);
provided
, that:
(i)
before and after giving effect to the borrowing of such Refinancing Term Loans
on the Refinancing Effective Date each of the conditionsset forth in Section
4.01 shall be satisfied to the extent required by the relevant Incremental
Assumption Agreement governing suchRefinancing Term Loans;
(ii)
the final maturity date of the Refinancing Term Loans shall be no earlier than
the Term Facility Maturity Date of the refinancedTerm Loans,
(iii)
the Weighted Average Life to Maturity of such Refinancing Term Loans shall be
no shorter than the then-remaining Weighted AverageLife to Maturity of the
refinanced Term Loans;
(iv)
the aggregate principal amount of the Refinancing Term Loans shall not exceed
the outstanding principal amount of the refinancedTerm Loans
plus
amounts used to pay fees, premiums, costs and expenses (including original
issue discount) and accrued interestassociated therewith;
(v)
all other terms applicable to such Refinancing Term Loans (other than
provisions relating to original issue discount, upfront fees,interest rates
and any other pricing terms (which original issue discount, upfront fees,
interest rates and other pricing terms shallnot be subject to the provisions
set forth in Section 2.21(b)(vii)) and optional prepayment or mandatory
prepayment or redemption terms,which shall be as agreed between the Borrower
and the Lenders providing such Refinancing Term Loans) taken as a whole shall
be substantiallysimilar to, or not materially less favorable to the Borrower
and its Subsidiaries than, the terms, taken as a whole, applicable to theTerm
B-1 Loans (except to the extent such covenants and other terms apply solely to
any period after the Term B-1 Facility Maturity Date),as determined by the
Borrower in good faith. In addition, notwithstanding the foregoing, the
Borrower may establish Refinancing Term Loansto refinance and/or replace all
or any portion of a Revolving Facility Commitment (regardless of whether
Revolving Facility Loans areoutstanding under such Revolving Facility
Commitments at the time of incurrence of such Refinancing Term Loans), so long
as (1) theaggregate amount of such Refinancing Term Loans does not exceed the
aggregate amount of Revolving Facility Commitments terminated at thetime of
incurrence thereof, (2) if the Revolving
114
Facility Credit Exposure outstandingon the Refinancing Effective Date would
exceed the aggregate amount of Revolving Facility Commitments outstanding in
each case after givingeffect to the termination of such Revolving Facility
Commitments, the Borrower shall take one or more actions such that such
RevolvingFacility Credit Exposure does not exceed such aggregate amount of
Revolving Facility Commitments in effect on the Refinancing EffectiveDate
after giving effect to the termination of such Revolving Facility Commitments
(it being understood that (x) such RefinancingTerm Loans may be provided by
the Lenders holding the Revolving Facility Commitments being terminated and/or
by any other person thatwould be a permitted Assignee hereunder and (y) the
proceeds of such Refinancing Term Loans shall not constitute Net Proceeds
hereunder),(3) the Weighted Average Life to Maturity of the Refinancing Term
Loans shall be no shorter than the remaining life to terminationof the
terminated Revolving Facility Commitments, (4) the final maturity date of the
Refinancing Term Loans shall be no earlier thanthe termination date of the
terminated Revolving Facility Commitments and (5) all other terms applicable
to such Refinancing TermLoans (other than provisions relating to original
issue discount, upfront fees, interest rates and any other pricing terms
(which originalissue discount, upfront fees, interest rates and other pricing
terms
shall not be subject
to the provisions set forth in Section2.21(b)(vii)) and optional prepayment or
mandatory prepayment or redemption terms, which shall be as agreed between the
Borrower and theLenders providing such Refinancing Term Loans) taken as a
whole shall be substantially similar to, or not materially less favorable
tothe Borrower and its Subsidiaries than, the terms, taken as a whole,
applicable to the Term B-1 Loans (except to the extent such covenantsand other
terms apply solely to any period after the Term B-1 Facility Maturity Date),
as determined by the Borrower in good faith;
(vi)
with respect to Refinancing Term Loans secured by Liens on the Collateral that
rank pari passu or junior in right of security tothe Term B-1 Loans, such
Liens will be subject to a Permitted Pari Passu Intercreditor Agreement or a
Permitted Junior Intercreditor Agreement,as applicable; and
(vii)
there shall be no obligor in respect of such Refinancing Term Loans that is
not a Loan Party.
(k)
The Borrower may approach any Lender or any other person that would be a
permitted Assignee pursuant to Section 9.04 to provideall or a portion of the
Refinancing Term Loans;
provided
, that any Lender offered or approached to provide all or a portion ofthe
Refinancing Term Loans may elect or decline, in its sole discretion, to
provide a Refinancing Term Loan. Any Refinancing Term Loansmade on any
Refinancing Effective Date shall be designated an additional Class of Term
Loans for all purposes of this Agreement;
provided
,
further
, that any Refinancing Term Loans may, to the extent provided in the
applicable Incremental Assumption Agreement governingsuch Refinancing Term
Loans, be designated as an increase in any previously established Class of
Term Loans made to the Borrower.
(l)
Notwithstanding anything to the contrary in this Agreement, including Section
2.18(c) (which provisions shall not be applicableto clauses (l) through (o) of
this Section 2.21), the Borrower may by written notice to the Administrative
Agent establish one ormore additional Facilities providing for revolving
commitments ("
Replacement Revolving Facilities
" and the commitmentsthereunder, "
Replacement Revolving Facility Commitments
" and the revolving loans thereunder, "
ReplacementRevolving Loans
"), which replace in whole or in part any Class of Revolving Facility
Commitments under this Agreement. Eachsuch notice shall specify the date
(each, a "
Replacement Revolving Facility Effective Date
") on which the Borrowerproposes that the Replacement Revolving Facility
Commitments shall become effective, which shall be a date not less than five
BusinessDays after the date on which such notice is delivered to the
Administrative Agent
115
(or such shorter period agreed to bythe Administrative Agent in its reasonable
discretion);
provided
that: (i) before and after giving effect to the establishmentof such
Replacement Revolving Facility Commitments on the Replacement Revolving
Facility Effective Date, each of the conditions set forthin Section 4.01 shall
be satisfied to the extent required by the relevant Incremental Assumption
Agreement governing such ReplacementRevolving Facility Commitments; (ii) after
giving effect to the establishment of any Replacement Revolving Facility
Commitments andany concurrent reduction in the aggregate amount of any other
Revolving Facility Commitments, the aggregate amount of Revolving
FacilityCommitments shall not exceed the aggregate amount of the Revolving
Facility Commitments outstanding immediately prior to the applicableReplacement
Revolving Facility Effective Date; (iii) no Replacement Revolving Facility
Commitments shall have a final maturity date(or require commitment reductions
or amortizations) prior to the Revolving Facility Maturity Date in effect at
the time of incurrencefor the Revolving Facility Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility
(otherthan provisions relating to (x) fees, interest rates and other pricing
terms and prepayment and commitment reduction and optionalredemption terms
which shall be as agreed between the Borrower and the Lenders providing such
Replacement Revolving Facility Commitmentsand (y) the amount of any letter of
credit sublimit and swingline commitment under such Replacement Revolving
Facility, which shallbe as agreed between the Borrower, the Lenders providing
such Replacement Revolving Facility Commitments, the Administrative Agent
andthe replacement issuing bank and replacement swingline lender, if any,
under such Replacement Revolving Facility Commitments) taken asa whole shall
be substantially similar to, or not materially less favorable to the Borrower
and its Subsidiaries than, the terms, takenas a whole, applicable to the 2021
Revolving Loans (except to the extent such covenants and other terms apply
solely to any period afterthe latest Revolving Facility Maturity Date in
effect at the time of incurrence); and (v) there shall be no obligor in
respect ofsuch Replacement Revolving Facility that is not a Loan Party. In
addition, the Borrower may establish Replacement Revolving Facility
Commitmentsto refinance and/or replace all or any portion of a Term Loan
hereunder (regardless of whether such Term Loan is repaid with the proceedsof
Replacement Revolving Loans or otherwise), so long as the aggregate amount of
such Replacement Revolving Facility Commitments doesnot exceed the aggregate
amount of Term Loans repaid at the time of establishment thereof (it being
understood that such Replacement RevolvingFacility Commitment may be provided
by the Lenders holding the Term Loans being repaid and/or by any other person
that would be a permittedAssignee hereunder) so long as (i) before and after
giving effect to the establishment such Replacement Revolving Facility
Commitmentson the Replacement Revolving Facility Effective Date each of the
conditions set forth in Section 4.01 shall be satisfied to the extentrequired
by the relevant agreement governing such Replacement Revolving Facility
Commitments, (ii) the remaining life to terminationof such Replacement
Revolving Facility Commitments shall be no shorter than the Weighted Average
Life to Maturity then applicable to therefinanced Term Loans, (iii) the final
termination date of the Replacement Revolving Facility Commitments shall be no
earlier thanthe Term Facility Maturity Date of the refinanced Term Loans, (iv)
with respect to Replacement Revolving Loans secured by Liens onCollateral that
rank junior in right of security to the 2021 Revolving Loans, such Liens will
be subject to a Permitted Junior IntercreditorAgreement and (v) the
requirement of clause (v) in the preceding sentence shall be satisfied mutatis
mutandis. Solely to theextent that an Issuing Bank or Swingline Lender is not
a replacement issuing bank or replacement swingline lender, as the case may
be,under a Replacement Revolving Facility, it is understood and agreed that
such Issuing Bank or Swingline Lender shall not be required toissue any
letters of credit or swingline loans under such Replacement Revolving Facility
and, to the extent it is necessary for such IssuingBank or Swingline Lender to
withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the
time of the establishment of suchReplacement Revolving Facility, such
withdrawal shall be on terms and conditions reasonably satisfactory to such
Issuing Bank or SwinglineLender, as the case may be, in its sole discretion.
The Borrower agrees to reimburse each Issuing Bank or Swingline Lender, as the
casemay be, in full upon
116
demand, for any reasonable and documentedout-of-pocket cost or expense
attributable to such withdrawal.
(m)
The Borrower may approach any Lender or any other person that would be a
permitted Assignee of a Revolving Facility Commitmentpursuant to Section 9.04
to provide all or a portion of the Replacement Revolving Facility Commitments;
provided
that anyLender offered or approached to provide all or a portion of the
Replacement Revolving Facility Commitments may elect or decline, in itssole
discretion, to provide a Replacement Revolving Facility Commitment. Any
Replacement Revolving Facility Commitment made on any ReplacementRevolving
Facility Effective Date shall be designated an additional Class of Revolving
Facility Commitments for all purposes of this Agreement;
provided
that any Replacement Revolving Facility Commitments may, to the extent
provided in the applicable Incremental AssumptionAgreement, be designated as
an increase in any previously established Class of Revolving Facility
Commitments.
(n)
On any Replacement Revolving Facility Effective Date, subject to the
satisfaction of the foregoing terms and conditions, each ofthe Lenders with
Replacement Revolving Facility Commitments of such Class shall purchase from
each of the other Lenders with ReplacementRevolving Facility Commitments of
such Class, at the principal amount thereof and in the applicable currencies,
such interests in theReplacement Revolving Loans and participations in Letters
of Credit and Swingline Loans under such Replacement Revolving Facility
Commitmentsof such Class then outstanding on such Replacement Revolving
Facility Effective Date as shall be necessary in order that, after
givingeffect to all such assignments and purchases, the Replacement Revolving
Loans and participations of such Replacement Revolving FacilityCommitments of
such Class will be held by the Lenders thereunder ratably in accordance with
their Replacement Revolving Facility Commitments.
(o)
For purposes of this Agreement and the other Loan Documents, (i) if a Lender
is providing a Refinancing Term Loan, such Lenderwill be deemed to have an
Incremental Term Loan having the terms of such Refinancing Term Loan and (ii)
if a Lender is providinga Replacement Revolving Facility Commitment, such
Lender will be deemed to have an Incremental Revolving Facility Commitment
having theterms of such Replacement Revolving Facility Commitment.
Notwithstanding anything to the contrary set forth in this Agreement or any
otherLoan Document (including, without limitation, this Section 2.21), (i) the
aggregate amount of Refinancing Term Loans and ReplacementRevolving Facility
Commitments will not be included in the calculation of the Incremental Amount,
(ii) no Refinancing Term Loan orReplacement Revolving Facility Commitment is
required to be in any minimum amount or any minimum increment, (iii) there
shall beno condition to any incurrence of any Refinancing Term Loan or
Replacement Revolving Facility Commitment at any time or from time to
timeother than those set forth in clauses (j) or (l) above, as applicable, and
(iv) all Refinancing Term Loans, Replacement RevolvingFacility Commitments and
all obligations in respect thereof shall be Obligations under this Agreement
and the other Loan Documents thatare secured by the Collateral on a pari passu
basis with all other Obligations under this Agreement and the other Loan
Documents.
(p)
Notwithstanding anything in the foregoing to the contrary, (i) for the purpose
of determining the number of outstanding SOFRBorrowings upon the incurrence of
any Incremental Loans, (x) to the extent the last date of Interest Periods for
multiple SOFR Borrowingsunder the Term Facilities fall on the same day, such
SOFR Borrowings shall be considered a single SOFR Borrowing and (y) to the
extentthe last date of Interest Periods for multiple SOFR Borrowings under the
Revolving Facilities fall on the same day, such SOFR Borrowingsshall be
considered a single SOFR Borrowing and (ii) the initial Interest Period with
respect to any SOFR Borrowing of IncrementalLoans may, at the Borrower's or
the applicable Co-Borrower's option, be of a duration of a number of Business
Days that isless than one month, and the Adjusted Term SOFR with respect to
such initial Interest Period
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shall be the same as the Adjusted TermSOFR applicable to any then-outstanding
SOFR Borrowing as the Borrower or the applicable Co-Borrower may direct, so
long as the last dayof such initial Interest Period is the same as the last
day of the Interest Period with respect to such outstanding SOFR Borrowing.
Section 2.22
Defaulting Lender
. (a)
Defaulting Lender Adjustments
. Notwithstandinganything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as such Lenderis no
longer a Defaulting Lender, to the extent permitted by applicable law:
(i)
Waivers and Amendments
. Such Defaulting Lender's right to approve or disapprove any amendment,
waiver or consent withrespect to this Agreement shall be restricted as set
forth in the definitions of "Required Lenders" or "Required RevolvingFacility
Lenders."
(ii)
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or other amounts received by the
Administrative Agentfor the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, following an Event of Default or
otherwise) orreceived by the Administrative Agent from a Defaulting Lender
pursuant to Section 9.06 shall be applied at such time or times asmay be
determined by the Administrative Agent as follows:
first
, to the payment of any amounts owing by such Defaulting Lenderto the
Administrative Agent hereunder,
second
, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lenderto any Issuing Bank or the Swingline Lender hereunder,
third
, to Cash Collateralize the Issuing Banks' Fronting Exposurewith respect to
such Defaulting Lender in accordance with Section 2.05(j),
fourth
, as the Borrower may request (so long asno Default or Event of Default
exists), to the funding of any Loan in respect of which such Defaulting Lender
has failed to fund its portionthereof as required by this Agreement, as
determined by the Administrative Agent,
fifth
, if so determined by the AdministrativeAgent and the Borrower, to be held in
a deposit account and released pro rata in order to (x) satisfy such
Defaulting Lender'spotential future funding obligations with respect to Loans
under this Agreement and (y) Cash Collateralize the Issuing Banks'future
Fronting Exposure with respect to such Defaulting Lender with respect to
future Letters of Credit issued under this Agreement,in accordance with
Section 2.05(j),
sixth
, to the payment of any amounts owing to the Lenders, the Issuing Banks or the
SwinglineLender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender or any Issuing Bank or the Swingline
Lenderagainst 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 acourt of
competent jurisdiction obtained by the Borrower against such Defaulting Lender
as a result of such Defaulting Lender'sbreach of its obligations under this
Agreement, and
eighth
, to such Defaulting Lender or as otherwise directed by a court of
competentjurisdiction. Any payments, prepayments or other amounts paid or
payable to a Defaulting Lender that are applied (or held) to pay amountsowed
by a Defaulting Lender or to post Cash Collateral pursuant to this Section
2.22 shall be deemed paid to and redirected by suchDefaulting Lender, and each
Lender irrevocably consents hereto.
(iii)
Certain Fees
. (A) No Defaulting Lender shall be entitled to receive any Commitment Fee for
any period during whichthat Lender is a Defaulting Lender.
(B)
Each Defaulting Lender shall be entitled to receive L/C Participation Fees for
any period during which that Lender is a DefaultingLender only to the extent
allocable to its pro rata share of the stated amount of Letters of Credit for
which it has provided Cash Collateral.
(C)
With respect to any Commitment Fee or L/C Participation Fee not required to be
paid to any Defaulting Lender pursuant to clause(A) or (B) above, the Borrower
and the Co-Borrower
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shall (x) pay to each Non-Defaulting Lenderthat portion of any such fee
otherwise payable to such Defaulting Lender with respect to such Defaulting
Lender's participationin Letters of Credit or Swingline Loans that has been
reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y)
payto each Issuing Bank and the Swingline Lender, as applicable, the amount of
any such fee otherwise payable to such Defaulting Lender tothe extent
allocable to such Issuing Bank's or the Swingline Lender's Fronting Exposure
to such Defaulting Lender, and (z) notbe required to pay the remaining amount
of any such fee.
(iv)
Reallocation of Participations to Reduce Fronting Exposure
. All or any part of such Defaulting Lender's participationin Letters of
Credit and Swingline Loans shall be reallocated among the Non-Defaulting
Lenders in accordance with their respective prorata Commitments (calculated
without regard to such Defaulting Lender's Commitment) but only to the extent
that (x) the conditionsset forth in Section 4.01 are satisfied at the time of
such reallocation and (y) such reallocation does not cause the aggregateRevolvin
g Facility Credit Exposure of any Non-Defaulting Lender to exceed such
Non-Defaulting Lender's Revolving Facility Commitment.Subject to Section 9.24,
no reallocation hereunder shall constitute a waiver or release of any claim of
any party hereunder against aDefaulting Lender arising from that Lender having
become a Defaulting Lender, including any claim of a Non-Defaulting Lender as
a resultof such Non-Defaulting Lender's increased exposure following such
reallocation.
(v)
Cash Collateral, Repayment of Swingline Loans
. If the reallocation described in clause (iv) above cannot, or can
onlypartially, be effected, the Borrower and the Co-Borrower shall, without
prejudice to any right or remedy available to it hereunder orunder law, within
three Business Days following the written request of the (i) Administrative
Agent or (ii) the Swingline Lenderor any Issuing Bank, as applicable (with a
copy to the Administrative Agent), (x)
first
, prepay Swingline Loans in an amount equalto the Swingline Lender's Fronting
Exposure and (y)
second
, Cash Collateralize the Issuing Banks' Fronting Exposurein accordance with
the procedures set forth in Section 2.05(j).
(b)
Defaulting Lender Cure
. If the Borrower, the Administrative Agent, the Swingline Lender and each
Issuing Bank agree in writingthat a Lender is no longer a Defaulting Lender,
the Administrative Agent will so notify the parties hereto, whereupon as of
the effectivedate specified in such notice and subject to any conditions set
forth therein (which may include arrangements with respect to any
CashCollateral), that Lender will, to the extent applicable, purchase at par
that portion of outstanding Revolving Facility Loans of the otherLenders or
take such other actions as the Administrative Agent may determine to be
necessary to cause the Loans and funded and unfundedparticipations in Letters
of Credit and Swingline Loans to be held pro rata by the Lenders in accordance
with their Revolving FacilityCommitments (without giving effect to Section
2.22(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
provided
that, no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while thatLender was a
Defaulting Lender;
provided
,
further
, that except to the extent otherwise expressly agreed by the affectedparties,
no change hereunder from Defaulting Lender to Lender will constitute a waiver
or release of any claim of any party hereunderarising from that Lender's
having been a Defaulting Lender.
(c)
New Swingline Loans/Letters of Credit
. So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall
notbe required to fund any Swingline Loans unless it is satisfied that it will
have no Fronting Exposure after giving effect to such SwinglineLoan and (ii)
the Issuing Banks shall not be required to issue, extend, renew or increase
any Letter of Credit unless it is satisfiedthat it will have no Fronting
Exposure after giving effect thereto.
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ARTICLE III
Representations and Warranties
On the date of each CreditEvent, the Borrower represents and warrants to each
of the Lenders that:
Section 3.01
Organization; Powers
. Except as set forth on Schedule 3.01, each of Holdings (prior to a Qualified
IPO), the Borrowerand each of the Material Subsidiaries (a) is a partnership,
limited liability company or corporation duly organized, validly existingand
in good standing (or, if applicable in a foreign jurisdiction, enjoys the
equivalent status under the laws of any jurisdiction oforganization outside
the United States of America) under the laws of the jurisdiction of its
organization, (b) has all requisitepower and authority to own its property and
assets and to carry on its business as now conducted, (c) is qualified to do
businessin each jurisdiction where such qualification is required, except
where the failure so to qualify would not reasonably be expected tohave a
Material Adverse Effect, and (d) has the power and authority to execute,
deliver and perform its obligations under each ofthe Loan Documents and each
other agreement or instrument contemplated thereby to which it is or will be a
party and, in the case of theBorrower, to borrow and otherwise obtain credit
hereunder.
Section 3.02
Authorization
. The execution, delivery and performance by the Borrower and each of the
Subsidiary Loan Parties and, in thecase of Section 3.02(a) and 3.02(b)(i)(B),
Holdings (prior to a Qualified IPO), of each of the Loan Documents to which it
is a party andthe borrowings hereunder (a) have been duly authorized by all
corporate, stockholder, partnership or limited liability company actionrequired
to be obtained by Holdings, the Borrower and such Subsidiary Loan Parties and
(b) will not (i) violate (A) anyprovision of law, statute, rule or regulation
applicable to Holdings, the Borrower or any such Subsidiary Loan Party, (B)
the certificateor articles of incorporation or other constitutive documents
(including any partnership, limited liability company or operating
agreements)or by-laws of Holdings, the Borrower, or any such Subsidiary Loan
Party, (C) any applicable order of any court or any rule, regulationor order
of any Governmental Authority applicable to the Borrower or any such
Subsidiary Loan Party or (D) any provision of any indenture,certificate of
designation for preferred stock, agreement or other instrument to which the
Borrower or any such Subsidiary Loan Partyis a party or by which any of them
or any of their property is or may be bound, (ii) result in a breach of or
constitute (alone orwith due notice or lapse of time or both) a default under,
give rise to a right of or result in any cancellation or acceleration of
anyright or obligation (including any payment) under any such indenture,
certificate of designation for preferred stock, agreement or otherinstrument,
where any such conflict, violation, breach or default referred to in clause
(i) or (ii) of this Section 3.02(b),would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, or (iii) result
in the creationor imposition of any Lien upon or with respect to (x) any
property or assets now owned or hereafter acquired by the Borrower or anysuch
Subsidiary Loan Party, other than the Liens created by the Loan Documents and
Permitted Liens, or (y) any Equity Interests ofthe Borrower now owned or
hereafter acquired by Holdings (prior to a Qualified IPO), other than Liens
created by the Loan Documents orLiens permitted by Article VIA.
Section 3.03
Enforceability
. This Agreement has been duly executed and delivered by Holdings and the
Borrower and constitutes, and eachother Loan Document when executed and
delivered by the Borrower and each Subsidiary Loan Party that is party thereto
and the HoldingsGuarantee and Pledge Agreement when executed and delivered by
Holdings, will constitute a legal, valid and binding obligation of suchLoan
Party enforceable against Holdings, the Borrower and each such Subsidiary Loan
Party in accordance with its terms, subject to (i) theeffects of bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance or other similar
laws affecting creditors'rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equityor at
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law), (iii) implied covenants of goodfaith and fair dealing and (iv) any
foreign laws, rules and regulations as they relate to pledges of Equity
Interests of ForeignSubsidiaries that are not Loan Parties.
Section 3.04
Governmental Approvals
. No action, consent or approval of, registration or filing with or any other
action by any GovernmentalAuthority is or will be required for the execution,
delivery or performance of each Loan Document to which the Borrower or any
SubsidiaryLoan Party is a party, except for (a) the filing of Uniform
Commercial Code financing statements, (b) filings with the UnitedStates Patent
and Trademark Office and the United States Copyright Office and comparable
offices in foreign jurisdictions and equivalentfilings in foreign
jurisdictions, (c) recordation of the Mortgages, (d) such as have been made or
obtained and are in full forceand effect, (e) such actions, consents and
approvals the failure of which to be obtained or made would not reasonably be
expected to havea Material Adverse Effect and (f) filings or other actions
listed on Schedule 3.04 and any other filings or registrations requiredby the
Security Documents.
Section 3.05
Financial Statements
. (a)(i) The audited consolidated balance sheets and the related statements of
operations, cash flowsand stockholders' equity for the Target and its
subsidiaries as of and for the fiscal years ended September 27, 2013,
September26, 2014 and September 25, 2015, (ii) the audited consolidated
balance sheets and related statements of income, stockholders' equityand cash
flows for the fiscal years ended December 31, 2012, December 31, 2013 and
December 31, 2014 for (A) Protection One and its subsidiariesand (B) ASG and
its subsidiaries and (iii) the audited consolidated balance sheets and related
statements of income, stockholders'equity and cash flows of the Borrower and
its subsidiaries for the fiscal year ended December 31, 2015 and (b) the
unaudited consolidatedbalance sheets and related statements of operations,
cash flows and stockholders' equity of the Target and its subsidiaries forthe
fiscal quarter ended December 31, 2015, including the notes thereto, if
applicable, present fairly in all material respects the consolidatedfinancial
position of the Target, Protection One, ASG, the Borrower and their respective
consolidated subsidiaries as of the dates andfor the periods referred to
therein and the results of operations and, if applicable, cash flows for the
periods then ended, and, exceptas set forth on
Schedule 3.05
, were prepared in accordance with GAAP applied on a consistent basis
throughout the periodscovered thereby, except, in the case of interim period
financial statements, for the absence of notes and for normal year-end
adjustmentsand except as otherwise noted therein.
Section 3.06
No Material Adverse Effect
. Since the Closing Date, there has been no event or circumstance that,
individually or in theaggregate with other events or circumstances, has had or
would reasonably be expected to have a Material Adverse Effect
.
Section 3.07
Title to Properties; Possession Under Leases
. (a) Each of the Borrowerand the Subsidiaries has valid title in fee simple
or equivalent to, or valid leasehold interests in, or easements or other
limited propertyinterests in, all its Real Properties (including all Mortgaged
Properties) and has valid title to its personal property and assets, ineach
case, except for Permitted Liens and except for defects in title that do not
materially interfere with its ability to conduct itsbusiness as currently
conducted or to utilize such properties and assets for their intended purposes
and except where the failure to havesuch title would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
All such propertiesand assets are free and clear of Liens, other than
Permitted Liens or Liens arising by operation of law. The Equity Interests of
the Borrowerowned by Holdings (prior to a Qualified IPO) are free and clear of
Liens, other than Liens permitted by Article VIA.
(b)
The Borrower and each of the Subsidiaries has complied with all material
obligations under all leases to which it is a party, exceptwhere the failure
to comply would not reasonably be expected to have Material Adverse Effect,
and all such leases are in full force andeffect, except leases in respect of
which the failure to be in full force and effect would not reasonably be
expected to have a MaterialAdverse Effect.
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(c)
As of the Closing Date, none of the Borrower and the Subsidiaries has received
any written notice of any pending or contemplatedcondemnation proceeding
affecting any material portion of the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnationthat remains unresolved as of the
Closing Date, except as set forth on Schedule 3.07(c).
(d)
As of the Closing Date, none of the Borrower and its Subsidiaries is obligated
under any right of first refusal, option or othercontractual right to sell,
assign or otherwise Dispose of any Mortgaged Property or any interest therein,
except as permitted under Section6.02 or 6.05 or as would not reasonably be
expected to have a Material Adverse Effect.
(e)
Schedule 1.01(E) lists each Material Real Property owned by any Loan Party as
of the Closing Date.
Section 3.08
Subsidiaries
. (a) Schedule 3.08(a) sets forth as of the ClosingDate the name and
jurisdiction of incorporation, formation or organization of each subsidiary of
the Borrower and, as to each such subsidiary,the percentage of each class of
Equity Interests owned by the Borrower or by any such subsidiary.
(b)
As of the Closing Date, after giving effect to the ADT Transactions, there are
no outstanding subscriptions, options, warrants,calls, rights or other
agreements or commitments (other than stock options granted to employees or
directors (or entities controlled bydirectors) and shares held by directors
(or entities controlled by directors)) relating to any Equity Interests of the
Borrower or anyof the Subsidiaries, except as set forth on Schedule 3.08(b).
Section 3.09
Litigation; Compliance with Laws
. (a) There are no actions, suitsor proceedings at law or in equity or by or
on behalf of any Governmental Authority or in arbitration now pending, or, to
the knowledgeof the Borrower, threatened in writing against the Borrower or
any of the Subsidiaries or any business, property or rights of any suchperson
(i) that involve any Loan Document or the ADT Transactions or (ii) that would
reasonably be expected to have, individuallyor in the aggregate, a Material
Adverse Effect.
(b)
None of the Borrower, the Subsidiaries and their respective properties or
assets is in violation of (nor will the continued operationof their material
properties and assets as currently conducted violate) any law, rule or
regulation (including any zoning, building, ordinance,code or approval or any
building permit, but excluding any Environmental Laws, which are the subject
of Section 3.16) or any restrictionof record or agreement affecting any
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction or decree ofany Governmental Authority, where such violation or
default would reasonably be expected to have, individually or in the
aggregate, aMaterial Adverse Effect.
Section 3.10
Federal Reserve Regulations
. Neither the making of any Loan (or the extension of any Letter of Credit)
hereunder nor theuse of the proceeds thereof will violate the provisions of
Regulation T, Regulation U or Regulation X of the Board.
Section 3.11
Investment Company Act
. None of Holdings (prior to a Qualified IPO), the Borrower and the
Subsidiaries is required to beregistered as an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
Section 3.12
Use of Proceeds
. (a) The Borrower and each Co-Borrower will use the proceeds of the Revolving
Facility Loans and SwinglineLoans, and may request the issuance of Letters of
Credit, solely for general corporate purposes (including, without limitation,
for theADT Transactions, for Permitted Business Acquisitions, for the
repurchase, redemption or refinancing of existing Indebtedness of
122
the Borrower and its Subsidiaries and the repurchaseof Equity Interests of
Holdings or any Parent Entity and, in the case of Letters of Credit, for the
back-up or replacement of existingletters of credit), (b) the Borrower and
each Co-Borrower will use the proceeds of the Term B-1 Loans made on the
Fourteenth IncrementalAssumption and Amendment Agreement Effective Date to
refinance the Existing Term B-1 Loans (as defined in the Fourteenth
Incremental Assumptionand Amendment Agreement) and pay fees and expenses
incurred in connection therewith and (c) the Borrower and each Co-Borrower
will usethe proceeds of the May 2024 Incremental Term B-1 Loans made on the
Sixteenth Incremental Assumption and Amendment Agreement EffectiveDate to
refinance in full the Borrower's and ADTCS' Term A Loans (as defined in the
Sixteenth Incremental Assumption and AmendmentAgreement) and pay fees and
expenses incurred in connection with the Sixteenth Incremental Assumption and
Amendment Agreement and thetransactions contemplated thereby.
Section 3.13
Tax Returns
. Except as set forth on Schedule 3.13:
(a)
Except as would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect, each of theBorrower and each of the
Subsidiaries has filed or caused to be filed all federal, state, local and
non-U.S. Tax returns required to havebeen filed by it (including in its
capacity as withholding agent) and each such Tax return is true and correct;
(b)
Except as would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect, each of theBorrower and each of the
Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be
due and payable by it on the returnsreferred to in clause (a) and all other
Taxes or assessments (or made adequate provision (in accordance with GAAP) for
the paymentof all Taxes due), except Taxes or assessments that are being
contested in good faith by appropriate proceedings in accordance with Section
5.03and for which the Borrower or any of the Subsidiaries (as the case may be)
has set aside on its books adequate reserves in accordancewith GAAP; and
(c)
Other than as would not be, individually or in the aggregate, reasonably
expected to have a Material Adverse Effect, as of theClosing Date, with
respect to the Borrower and each of the Subsidiaries, there are no claims
being asserted in writing with respect toany Taxes.
Section 3.14
No Material Misstatements
. (a) All written factual information(other than the Projections, forward
looking information and information of a general economic nature or general
industry nature) (the"
Information
") concerning the Borrower, the Subsidiaries, the ADT Transactions and any
other transactions contemplatedhereby included in the Information Memorandum
or otherwise prepared by or on behalf of the foregoing or their representatives
and madeavailable to any Lenders or the Administrative Agent in connection
with the ADT Transactions or the other transactions contemplated hereby(to the
extent such Information relates to the Target on or prior to the Closing Date,
to the Borrower's knowledge), when takenas a whole, was true and correct in
all material respects, as of the date such Information was furnished to the
Lenders and as of theClosing Date and did not, taken as a whole, contain any
untrue statement of a material fact as of any such date or omit to state a
materialfact necessary in order to make the statements contained therein,
taken as a whole, not materially misleading in light of the circumstancesunder
which such statements were made (giving effect to all supplements and updates
provided thereto).
(b)
The Projections and other forward looking information and information of a
general economic nature prepared by or on behalf ofthe Borrower or any of its
representatives and that have been made available to any Lenders or the
Administrative Agent in connectionwith the ADT Transactions or the other
transactions contemplated hereby have been prepared in good faith based upon
assumptions believedby the Borrower to be reasonable as of the date thereof
(it being understood that such Projections are as to future events and are
notto be viewed as facts, such Projections are
123
subject to significant uncertaintiesand contingencies and that actual results
during the period or periods covered by any such Projections may differ
significantly from theprojected results, and that no assurance can be given
that the projected results will be realized), as of the date such Projections
andinformation were furnished to the Lenders.
(c)
As of the Eighth Amendment Agreement Effective Date, the information included
in the Beneficial Ownership Certification is trueand correct in all material
respects.
Section 3.15
Employee Benefit Plans
. Except as would not reasonably be expected, individually or in the
aggregate, to have a MaterialAdverse Effect: (i) no Reportable Event has
occurred during the past five years as to which the Borrower, any of its
Subsidiariesor any ERISA Affiliate was required to file a report with the
PBGC; (ii) no ERISA Event has occurred or is reasonably expected tooccur; and
(iii) none of the Borrower, the Subsidiaries or any of their ERISA Affiliates
has received any written notification thatany Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV of ERISA.
Section 3.16
Environmental Matters
. Except as to matters that would not reasonably be expected to have,
individually or in the aggregate,a Material Adverse Effect: (i) no written
notice, request for information, order, complaint or penalty has been received
by the Borroweror any of its Subsidiaries, and there are no judicial,
administrative or other actions, suits or proceedings pending or, to the
Borrower'sknowledge, threatened which allege a violation of or liability under
any Environmental Laws, in each case relating to the Borrower orany of its
Subsidiaries, (ii) each of the Borrower and its Subsidiaries has all
environmental permits, licenses and other approvalsnecessary for its
operations to comply with all Environmental Laws ("
Environmental Permits
") and is, and in the prioreighteen (18) month period, has been, in compliance
with the terms of such Environmental Permits and with all other Environmental
Laws,(iii) except as set forth on Schedule 3.16, no Hazardous Material is
located at, on or under any property currently or, to theBorrower's knowledge,
formerly owned, operated or leased by the Borrower or any of its Subsidiaries
that would reasonably be expectedto give rise to any cost, liability or
obligation of the Borrower or any of its Subsidiaries under any Environmental
Laws or EnvironmentalPermits, and no Hazardous Material has been generated,
used, treated, stored, handled, disposed of or controlled, transported or
Releasedat any location in a manner that would reasonably be expected to give
rise to any cost, liability or obligation of the Borrower or anyof its
Subsidiaries under any Environmental Laws or Environmental Permits, (iv) there
are no agreements in which the Borrower orany of its Subsidiaries has
expressly assumed or undertaken responsibility for any known or reasonably
likely liability or obligationof any other person arising under or relating to
Environmental Laws, which in any such case has not been made available to the
AdministrativeAgent prior to the Closing Date, and (v) there has been no
material written environmental assessment or audit conducted (other
thancustomary assessments not revealing anything that would reasonably be
expected to result in a Material Adverse Effect), by or on behalfof the
Borrower or any of the Subsidiaries of any property currently or, to the
Borrower's knowledge, formerly owned or leased bythe Borrower or any of the
Subsidiaries that has not been made available to the Administrative Agent
prior to the Closing Date.
Section 3.17
Security Documents
. (a) Each of the Collateral Agreement and theHoldings Guarantee and Pledge
Agreement is effective to create in favor of the Collateral Agent (for the
benefit of the Secured Parties),in each case, a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof. As
of the ClosingDate, in the case of the Pledged Collateral described in the
Collateral Agreement, when certificates or promissory notes, as applicable,repre
senting such Pledged Collateral and required to be delivered under the
applicable Security Document are delivered to the CollateralAgent, and in the
case of the other Collateral described in the Collateral Agreement (other than
the Intellectual Property), when financingstatements and other filings
specified in the Perfection Certificate are filed in the offices specified in
the Perfection Certificate,the Collateral Agent (for the benefit
124
of the Secured Parties) shall have a fullyperfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and, subject to Section 9-315of the New York Uniform Commercial
Code, the proceeds thereof, as security for the Obligations to the extent
perfection can be obtainedby filing Uniform Commercial Code financing
statements, in each case prior and superior in right to the Lien of any other
person (exceptPermitted Liens).
(b)
When the Collateral Agreement or an ancillary document thereunder is properly
filed and recorded in the United States Patent andTrademark Office and the
United States Copyright Office, and, with respect to Collateral in which a
security interest cannot be perfectedby such filings, upon the proper filing
of the financing statements referred to in clause (a) above, the Collateral
Agent (for thebenefit of the Secured Parties) shall have a fully perfected
(subject to exceptions arising from defects in the chain of title,
whichdefects in the aggregate do not constitute a Material Adverse Effect
hereunder) Lien on, and security interest in, all right, title andinterest of
the Loan Parties thereunder in the material domestic Intellectual Property
included in the Collateral (but, in the case ofthe United States registered
copyrights included in the Collateral, only to the extent such United States
registered copyrights are listedin such ancillary document filed with the
United States Copyright Office) listed in such ancillary document, in each
case prior and superiorin right to the Lien of any other person, except for
Permitted Liens (it being understood that subsequent recordings in the United
StatesPatent and Trademark Office and the United States Copyright Office may
be necessary to perfect a Lien on material registered trademarksand patents,
trademark and patent applications and registered copyrights acquired by the
Loan Parties after the Closing Date).
(c)
The Mortgages, if any, executed and delivered on the Closing Date are, and the
Mortgages executed and delivered after the ClosingDate pursuant to Section
5.10 shall be, effective to create in favor of the Collateral Agent (for the
benefit of the Secured Parties)legal, valid and enforceable Liens on all of
the Loan Parties' rights, titles and interests in and to the Mortgaged
Property thereunderand the proceeds thereof, and when such Mortgages are filed
or recorded in the proper real estate filing or recording offices, and
allrelevant mortgage taxes and recording charges are duly paid, the Collateral
Agent (for the benefit of the Secured Parties) shall havevalid Liens with
record notice to third parties on, and security interests in, all rights,
titles and interests of the Loan Parties insuch Mortgaged Property and, to the
extent applicable, subject to Section 9-315 of the Uniform Commercial Code,
the proceeds thereof,in each case prior and superior in right to the Lien of
any other person, except for Permitted Liens.
(d)
Notwithstanding anything herein (including this Section 3.17) or in any other
Loan Document to the contrary, no Borrower orany other Loan Party makes any
representation or warranty as to the effects of perfection or non-perfection,
the priority or the enforceabilityof any pledge of or security interest in any
Equity Interests of any Foreign Subsidiary, or as to the rights and remedies
of the Agentsor any Lender with respect thereto, under foreign law.
Section 3.18
Location of Real Property
. The Perfection Certificate lists correctly, in all material respects, as of
the Closing Dateall Material Real Property owned by the Borrower and the
Subsidiary Loan Parties and the addresses thereof. As of the Closing Date,
theBorrower and the Subsidiary Loan Parties own in fee all the Real Property
set forth as being owned by them in the Perfection Certificateexcept to the
extent set forth therein.
Section 3.19
Solvency
. (a) Immediately after giving effect to the ADT Transactionson the Closing
Date, (i) the fair value of the assets of the Borrower and its Subsidiaries on
a consolidated basis, at a fair valuation,will exceed the debts and
liabilities, direct, subordinated, contingent or otherwise, of the Borrower
and its Subsidiaries on a consolidatedbasis; (ii) the present fair saleable
value of the property of the Borrower and its Subsidiaries on a consolidated
basis will begreater than the amount that will be
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required to pay the probable liability of theBorrower and its Subsidiaries on
a consolidated basis on their debts and other liabilities, direct,
subordinated, contingent or otherwise,as such debts and other liabilities
become absolute and matured; (iii) the Borrower and its Subsidiaries on a
consolidated basiswill be able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absoluteand matured; and (iv) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital with whichto
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted following theClosing Date.
(b)
As of the Closing Date, immediately after giving effect to the consummation of
the ADT Transactions, the Borrower does not intendto, and the Borrower does
not believe that it or any of its Subsidiaries will, incur debts beyond its
ability to pay such debts as theymature, taking into account the timing and
amounts of cash to be received by it or any such Subsidiary and the timing and
amounts of cashto be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
Section 3.20
Labor Matters
. Except as, individually or in the aggregate, would not reasonably be
expected to have a Material AdverseEffect: (a) there are no strikes or other
labor disputes pending or threatened against the Borrower or any of the
Subsidiaries; (b) thehours worked and payments made to employees of the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
StandardsAct or any other applicable law dealing with such matters; and (c)
all payments due from the Borrower or any of the Subsidiariesor for which any
claim may be made against the Borrower or any of the Subsidiaries, on account
of wages and employee health and welfareinsurance and other benefits have been
paid or accrued as a liability on the books of the Borrower or such Subsidiary
to the extent requiredby GAAP. Except as, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, the
consummationof the ADT Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union under any
materialcollective bargaining agreement to which the Borrower or any of the
Subsidiaries (or any predecessor) is a party or by which the Borroweror any of
the Subsidiaries (or any predecessor) is bound.
Section 3.21
Insurance
. Schedule 3.21 sets forth a true, complete and correct description, in all
material respects, of all materialinsurance (excluding any title insurance)
maintained by or on behalf of the Borrower or the Subsidiaries as of the
Closing Date. As ofsuch date, such insurance is in full force and effect.
Section 3.22
No Default
. No Default or Event of Default has occurred and is continuing or would
result from the consummation of the transactionscontemplated by this Agreement
or any other Loan Document.
Section 3.23
Intellectual Property; Licenses, Etc.
Except as would not reasonably be expected to have a Material Adverse Effect
or asset forth in Schedule 3.23, (a) the Borrower and each of its Subsidiaries
owns, or possesses the right to use, all IntellectualProperty that are used or
held for use in or are otherwise reasonably necessary for the present conduct
of their respective businesses,(b) to the knowledge of the Borrower, the
Borrower and its Subsidiaries are not interfering with, infringing upon,
misappropriatingor otherwise violating Intellectual Property of any person,
and (c) (i) no claim or litigation regarding any of the IntellectualProperty
owned by the Borrower and its Subsidiaries is pending or, to the knowledge of
the Borrower, threatened and (ii) to the knowledgeof the Borrower, no claim or
litigation regarding any other Intellectual Property described in the
foregoing clauses (a) and (b) ispending or threatened.
Section 3.24
Senior Debt
. The Loan Obligations constitute "Senior Debt" (or the equivalent thereof)
under the documentationgoverning any Material Indebtedness of any Loan Party
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permitted to be incurred hereunder constitutingIndebtedness that is
subordinated in right of payment to the Loan Obligations.
Section 3.25
USA PATRIOT Act; OFAC
.
(a)
The Borrower and each Subsidiary Loan Party is in compliance in all material
respects with the material provisions of the USA PATRIOTAct, and, on or prior
to the Closing Date, the Borrower has provided to the Administrative Agent all
information related to the Loan Parties(including names, addresses and tax
identification numbers (if applicable)) reasonably requested in writing by the
Administrative Agentnot less than 10 Business Days prior to the Closing Date
and mutually agreed to be required under "know your customer" andanti-money
laundering rules and regulations, including the USA PATRIOT Act, to be
obtained by the Administrative Agent or any Lender.
(b)
None of Holdings, the Borrower or any of its Subsidiaries nor, to the
knowledge of the Borrower, any director, officer, agent,employee or Affiliate
of the Borrower or any of the Subsidiaries is currently the target of any
sanctions administered by the United States,including the Office of Foreign
Assets Control of the U.S. Treasury Department ("
OFAC
") and the U.S. State Department,the United Nations Security Council, Her
Majesty's Treasury, the European Union or relevant member states of the
European Union(collectively, the "
Sanctions
") and Borrower and its Subsidiaries and, to the knowledge of Borrower, their
respectivedirectors, officers, employees and agents are in compliance with
sanctions laws and regulations administered by the United States,
includingOFAC and the U.S. State Department, the United Nations Security
Council, Her Majesty's Treasury, the European Union or relevantmember states
of the European Union (collectively, the "
Sanctions Laws
") in all material respects. The Borrower willnot directly or indirectly use
the proceeds of the Loans or the Letters of Credit or otherwise make available
such proceeds to any person,for the purpose of financing the activities of any
person that is currently the target of any Sanctions or for the purpose of
funding,financing or facilitating any activities, business or transaction with
or in any country that is the target of the Sanctions, to the extentsuch
activities, businesses or transaction would be prohibited by the Sanctions
Laws, or in any manner that would result in the violationof any Sanctions Laws
applicable to any party hereto.
Section 3.26
Foreign Corrupt Practices Act
. Holdings, the Borrower and its Subsidiaries, and, to the knowledge of the
Borrower or anyof its Subsidiaries, their directors, officers, agents or
employees, are in compliance with the U.S. Foreign Corrupt Practices Act
of1977 or similar law of a jurisdiction in which the Borrower or any of its
Subsidiaries conduct their business and to which they are lawfullysubject ("
Anti-Corruption Laws
"), in each case, in all material respects. No part of the proceeds of the
Loans or Lettersof Credit made hereunder will be used to make any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment
.
Article IV
Conditions of Lending
The obligations of (a) theLenders (including the Swingline Lender) to make
Loans (other than (x) the 2024 Refinancing Term B-1 Loans on the Fourteenth
IncrementalAssumption and Amendment Agreement Effective Date, the conditions
with respect to which are set forth in the Fourteenth Incremental
Assumptionand Amendment Agreement, (y) the Incremental Term B-1 Loans deemed
made on the Fifteenth Incremental Assumption and Amendment AgreementEffective
Date, the conditions with respect to which are set forth in the Fifteenth
Incremental Assumption and Amendment Agreement and(z) the May 2024 Incremental
Term B-1 Loans on the Sixteenth Incremental Assumption and Amendment Agreement
127
Effective Date, the conditions with respectto which are set forth in the
Sixteenth Incremental Assumption and Amendment Agreement) and (b) any Issuing
Bank to issue, amend,extend or renew Letters of Credit or increase the stated
amounts of Letters of Credit hereunder (each, a "
Credit Event
")are subject to the satisfaction (or waiver in accordance with Section 9.08)
of the following conditions:
Section 4.01
All Credit Events
. On the date of each Borrowing and on the date of each issuance, amendment,
extension or renewal of aLetter of Credit (in the case of clauses (b) and (c),
other than pursuant to an Incremental Assumption Agreement):
(a)
The Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03(or a Borrowing Request shall
have been deemed given in accordance with the last paragraph of Section 2.03)
or, in the caseof the issuance of a Letter of Credit, the applicable Issuing
Bank and the Administrative Agent shall have received a notice requestingthe
issuance of such Letter of Credit as required by Section 2.05(b).
(b)
The representations and warranties set forth in the Loan Documents shall be
true and correct in all material respects as of suchdate (other than an
amendment, extension or renewal of a Letter of Credit without any increase in
the stated amount of such Letter ofCredit), as applicable, with the same
effect as though made on and as of such date, except to the extent such
representations and warrantiesexpressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respectsas of such earlier date).
(c)
At the time of and immediately after such Borrowing or issuance, amendment,
extension or renewal of a Letter of Credit (other thanan amendment, extension
or renewal of a Letter of Credit without any increase in the stated amount of
such Letter of Credit), as applicable,no Event of Default or Default shall
have occurred and be continuing.
Each such Borrowing and otherCredit Event shall be deemed to constitute a
representation and warranty by the Borrower on the date of such Borrowing,
issuance, amendment,extension or renewal, as applicable, as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
Article V
Affirmative Covenants
The Borrower covenants andagrees with each Lender that, until the Termination
Date, unless the Required Lenders shall otherwise consent in writing, the
Borrowerwill, and will cause each of the Subsidiaries to:
Section 5.01
Existence; Business and Properties
. (a) Do or cause to be doneall things necessary to preserve, renew and keep
in full force and effect its legal existence, except, in the case of a
Subsidiary ofthe Borrower, where the failure to do so would not reasonably be
expected to have a Material Adverse Effect, and except as otherwise
permittedunder Section 6.05, and except for the liquidation or dissolution of
Subsidiaries if the assets of such Subsidiaries to the extentthey exceed
estimated liabilities are acquired by the Borrower or a Wholly Owned
Subsidiary of the Borrower in such liquidation or dissolution;
provided
, that Subsidiary Loan Parties may not be liquidated into Subsidiaries that
are not Loan Parties and Domestic Subsidiariesmay not be liquidated into
Foreign Subsidiaries (except in each case as permitted under Section 6.05).
(b)
Except where the failure to do so would not reasonably be expected to have a
Material Adverse Effect, do or cause to be done allthings necessary to (i)
lawfully obtain, preserve, renew, extend and keep in full force and effect the
permits, franchises, authorizations,Intellectual
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Property, licenses and rights with respectthereto necessary to the normal
conduct of its business, and (ii) at all times maintain, protect and preserve
all property necessaryto the normal conduct of its business and keep such
property in good repair, working order and condition (ordinary wear and tear
excepted),from time to time make, or cause to be made, all needful and proper
repairs, renewals, additions, improvements and replacements theretonecessary
in order that the business carried on in connection therewith, if any, may be
properly conducted at all times (in each caseexcept as permitted by this
Agreement).
Section 5.02
Insurance
. (a) Maintain, with financially sound and reputable insurancecompanies,
insurance (subject to customary deductibles and retentions) in such amounts
and against such risks as are customarily maintainedby similarly situated
companies engaged in the same or similar businesses operating in the same or
similar locations, cause the CollateralAgent to be listed as a co-loss payee
on property and casualty policies with respect to Mortgaged Property located
in the United Statesof America and as an additional insured on liability
policies. Notwithstanding the foregoing, the Borrower and the Subsidiaries may
self-insurewith respect to such risks with respect to which companies of
established reputation engaged in the same general line of business in thesame
general area usually self-insure.
(b)
Except as the Collateral Agent may agree in its reasonable discretion, cause
all such property and casualty insurance policieswith respect to the Mortgaged
Property located in the United States of America to be endorsed or otherwise
amended to include a "standard"or "New York" lender's loss payable
endorsement, in form and substance reasonably satisfactory to the
CollateralAgent, deliver a certificate of an insurance broker to the
Collateral Agent; cause each such policy covered by this clause (b) toprovide
that it shall not be cancelled or not renewed upon less than 30 days' prior
written notice thereof by the insurer to theCollateral Agent; deliver to the
Collateral Agent, prior to or concurrently with the cancellation or nonrenewal
of any such policy ofinsurance covered by this clause (b), a copy of a renewal
or replacement policy (or other evidence of renewal of a policy previously
deliveredto the Collateral Agent), or insurance certificate with respect
thereto, together with evidence satisfactory to the Collateral Agent ofpayment
of the premium therefor, in each case of the foregoing, to the extent
customarily maintained, purchased or provided to, or atthe request of, lenders
by similarly situated companies in connection with credit facilities of this
nature.
(c)
If any portion of any Mortgaged Property is at any time located in an area
identified by the Federal Emergency Management Agency(or any successor agency)
as a special flood hazard area (each a "
Special Flood Hazard Area
") with respect to whichflood insurance has been made available under the
Flood Insurance Laws, (i) maintain, or cause to be maintained, with a
financiallysound and reputable insurer, flood insurance in an amount and
otherwise sufficient to comply with all applicable rules and regulationspromulga
ted pursuant to the Flood Insurance Laws and (ii) deliver to the Collateral
Agent evidence of such compliance in form andsubstance reasonably acceptable
to the Collateral Agent, including a copy of the flood insurance policy and
declaration page relatingthereto.
(d)
In connection with the covenants set forth in this Section 5.02, it is
understood and agreed that:
(i)
the Administrative Agent, the Collateral Agent, the Lenders, the Issuing Banks
and their respective agents or employees shall notbe liable for any loss or
damage insured by the insurance policies required to be maintained under this
Section 5.02, it being understoodthat (A) the Loan Parties shall look solely
to their insurance companies or any other parties other than the aforesaid
parties forthe recovery of such loss or damage and (B) such insurance
companies shall have no rights of subrogation against the AdministrativeAgent,
the Collateral Agent, the Lenders, any Issuing Bank or their agents or
employees. If, however, the insurance policies, as a
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matter of the internal policy of suchinsurer, do not provide waiver of
subrogation rights against such parties, as required above, then each of
Holdings and the Borrower,on behalf of itself and behalf of each of its
Subsidiaries, hereby agrees, to the extent permitted by law, to waive, and
further agreesto cause each of their Subsidiaries to waive, its right of
recovery, if any, against the Administrative Agent, the Collateral Agent,
theLenders, any Issuing Bank and their agents and employees;
(ii)
the designation of any form, type or amount of insurance coverage by the
Collateral Agent (including acting in the capacity asthe Collateral Agent)
under this Section 5.02 shall in no event be deemed a representation, warranty
or advice by the CollateralAgent or the Lenders that such insurance is
adequate for the purposes of the business of Holdings, the Borrower and the
Subsidiaries orthe protection of their properties; and
(iii)
the amount and type of insurance that the Borrower and its Subsidiaries has in
effect as of the Closing Date satisfies for allpurposes the requirements of
this Section 5.02.
Section 5.03
Taxes
. Pay its obligations in respect of all Tax liabilities, assessments and
governmental charges, before the same shallbecome delinquent or in default,
except where (i) the amount or validity thereof is being contested in good
faith by appropriateproceedings and the Borrower or a Subsidiary thereof has
set aside on its books adequate reserves therefor in accordance with GAAP
or(ii) the failure to make payment could not reasonably be expected,
individually or in the aggregate, to result in a Material AdverseEffect.
Section 5.04
Financial Statements, Reports, etc.
Furnish to the Administrative Agent (which will promptly furnish such
information tothe Lenders):
(a)
within 90 days after the end of each fiscal year (commencing with the fiscal
year ending December 31, 2016), a consolidated balancesheet and related
statements of operations, cash flows and owners' equity showing the financial
position of the Borrower and itsSubsidiaries as of the close of such fiscal
year and the consolidated results of their operations during such year and
setting forth incomparative form the corresponding figures for the prior
fiscal year, which consolidated balance sheet and related statements of
operations,cash flows and owners' equity shall be accompanied by customary
management's discussion and analysis and audited by independentpublic
accountants of recognized national standing and accompanied by an opinion of
such accountants (which opinion shall not be qualifiedas to scope of audit or
as to the status of the Borrower or any Material Subsidiary as a going
concern, other than solely with respectto, or resulting solely from, an
upcoming maturity date under any series of Indebtedness occurring within one
year from the time suchopinion is delivered or any potential inability to
satisfy a financial maintenance covenant on a future date or in a future
period) tothe effect that such consolidated financial statements fairly
present, in all material respects, the financial position and results
ofoperations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP (it being understood that the deliveryby the Borrower of
annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries
shall satisfy the requirements of thisSection 5.04(a) to the extent such
annual reports include the information specified herein);
(b)
within 45 days after the end of each of the first three fiscal quarters of
each fiscal year (commencing with the fiscal quarterending June 30, 2016), a
consolidated balance sheet and related statements of operations and cash flows
showing the financial positionof the Borrower and its Subsidiaries as of the
close of such fiscal quarter and the consolidated results of their operations
during suchfiscal quarter and the then-elapsed portion of the fiscal year and,
starting with the fiscal quarter ending September 30, 2016, settingforth in
comparative form the corresponding figures for the corresponding periods of
the prior fiscal year, all of which shall be in reasonabledetail, which
consolidated balance sheet and related statements of operations and cash flows
shall be accompanied
130
by customary management's discussionand analysis and which consolidated
balance sheet and related statements of operations and cash flows shall be
certified by a FinancialOfficer of the Borrower on behalf of the Borrower as
fairly presenting, in all material respects, the financial position and
results ofoperations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP (subject to normal year-end audit adjustmentsand
the absence of footnotes) (it being understood that the delivery by the
Borrower of quarterly reports on Form 10-Q of the Borrowerand its consolidated
Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the
extent such quarterly reports includethe information specified herein);
(c)
(x) concurrently with any delivery of financial statements under clause (a) or
(b) above, a certificate of a FinancialOfficer of the Borrower (i) certifying
that no Event of Default or Default has occurred since the date of the last
certificate deliveredpursuant to this Section 5.04(c) or, if such an Event of
Default or Default has occurred, specifying the nature and extent thereof
andany corrective action taken or proposed to be taken with respect thereto,
(ii) commencing with the end of the first full fiscal quarterafter the Closing
Date, setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating the calculationof the Net First Lien
Leverage Ratio and, if applicable, compliance with the Financial Covenant and
(iii) setting forth the calculationand uses of the Cumulative Credit for the
fiscal period then ended if the Borrower shall have used the Cumulative Credit
(other than pursuantto clause (a) of the definition of "Cumulative Credit")
for any purpose during such fiscal period and (y) concurrentlywith any
delivery of financial statements under clause (a) above, if the accounting
firm is not restricted from providing such acertificate by its policies
office, a certificate of the accounting firm opining on or certifying such
statements stating whether theyobtained knowledge during the course of their
examination of such statements of any Default or Event of Default (which
certificate maybe limited to accounting matters and disclaim responsibility
for legal interpretations);
(d)
promptly after the same become publicly available, copies of all periodic and
other publicly available reports, proxy statementsand, to the extent requested
by the Administrative Agent, other materials filed by Holdings (prior to a
Qualified IPO), the Borrower orany of the Subsidiaries with the SEC, or after
an initial public offering, distributed to its stockholders generally, as
applicable;
provided
,
however
, that such reports, proxy statements, filings and other materials required to
be delivered pursuant to this clause (d) shallbe deemed delivered for purposes
of this Agreement when posted to the website of the Borrower (or Holdings or
any Parent Entity referredto in Section 5.04(h)) or the website of the SEC;
(e)
within 90 days (or such later date as the Administrative Agent may agree in
its reasonable discretion) after the beginning of eachfiscal year (commencing
with the fiscal year ending December 31, 2017), a consolidated annual budget
for such fiscal year consisting ofa projected consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of the following fiscal year
and the relatedconsolidated statements of projected cash flow and projected
income (collectively, the "
Budget
"), which Budget shallin each case be accompanied by the statement of a
Financial Officer of the Borrower to the effect that the Budget is based on
assumptionsbelieved by the Borrower to be reasonable as of the date of
delivery thereof;
(f)
upon the reasonable request of the Administrative Agent not more frequently
than once a year, an updated Perfection Certificate(or, to the extent such
request relates to specified information contained in the Perfection
Certificate, such information) reflectingall changes since the date of the
information most recently received pursuant to this clause (f) or Section
5.10(f);
(g)
promptly, from time to time, (i) such other information regarding the
operations, business affairs and financial condition of Holdings,the Borrower
or any of the
131
Subsidiaries, or compliance with theterms of any Loan Document as in each case
the Administrative Agent may reasonably request (for itself or on behalf of
any Lender) or(ii) information and documentation reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) for purposesof
compliance with applicable "know your customer" requirements under the USA
PATRIOT Act or other applicable anti-money launderinglaws and the Beneficial
Ownership Regulation;
(h)
in the event that Holdings or any Parent Entity reports on a consolidated
basis, such consolidated reporting at Holdings or suchParent Entity's level in
a manner consistent with that described in clauses (a) and (b) of this Section
5.04 forthe Borrower (together with a reconciliation showing the adjustments
necessary to determine compliance by the Borrower and its Subsidiarieswith the
Financial Covenant) will satisfy the requirements of such paragraphs; and
(i)
at a time mutually agreed with the Administrative Agent after the delivery of
the financial statements required pursuant to Sections5.04(a) and 5.04(b) (but
not later than 10 Business Days after such delivery), upon request of the
Administrative Agent, the Borrowershall cause appropriate Financial Officers
or other officers with reasonably equivalent duties of the Borrower to
participate in one conferencecall for Lenders to discuss the financial
condition and results of operations of the Borrower and its Subsidiaries for
the most recentlyended fiscal period.
The Borrower hereby acknowledgesand agrees that all financial statements
furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to
be Borrower Materialssuitable for distribution, and to be made available, to
Public Lenders as contemplated by Section 9.17 and may be treated by the
AdministrativeAgent and the Lenders as if the same had been marked "PUBLIC" in
accordance with such paragraph.
Section 5.05
Litigation and Other Notices
. Furnish to the Administrative Agent (which will promptly thereafter furnish
to the Lenders)written notice of the following promptly after any Responsible
Officer of Holdings (prior to a Qualified IPO) or the Borrower obtainsactual
knowledge thereof:
(a)
any Event of Default or Default, specifying the nature and extent thereof and
the corrective action (if any) proposed to be takenwith respect thereto;
(b)
the filing or commencement of, or any written threat or notice of intention of
any person to file or commence, any action, suitor proceeding, whether at law
or in equity or by or before any Governmental Authority or in arbitration,
against Holdings, the Borroweror any of the Subsidiaries as to which an
adverse determination is reasonably probable and which, if adversely
determined, would reasonablybe expected to have a Material Adverse Effect;
(c)
any other development specific to Holdings, the Borrower or any of the
Subsidiaries that is not a matter of general public knowledgeand that has had,
or would reasonably be expected to have, a Material Adverse Effect; and
(d)
the occurrence of any ERISA Event that, together with all other ERISA Events
that have occurred, would reasonably be expected tohave a Material Adverse
Effect.
Section 5.06
Compliance with Laws
. Comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to itor its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result
in aMaterial Adverse Effect;
provided
, that this Section 5.06 shall not apply to Environmental Laws, which are the
subject ofSection 5.09, or to laws related to Taxes, which are the subject of
Section 5.03. The Borrower will maintain
132
in effect and enforce policies and proceduresreasonably designed to ensure
compliance in all material respects by the Borrower, its Subsidiaries and
their respective directors, officers,employees and agents with Anti-Corruption
Laws and applicable Sanctions Laws in connection with the Borrower's or its
Subsidiaries'business operations, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result
ina Material Adverse Effect.
Section 5.07
Maintaining Records; Access to Properties and Inspections
. Maintain all financial records in accordance with GAAP and permitany persons
designated by the Administrative Agent or, upon the occurrence and during the
continuance of an Event of Default, any Lenderto visit and inspect the
financial records and the properties of Holdings (prior to a Qualified IPO),
the Borrower or any of the Subsidiariesat reasonable times, upon reasonable
prior notice to Holdings (prior to a Qualified IPO) or the Borrower, and as
often as reasonably requestedand to make extracts from and copies of such
financial records, and permit any persons designated by the Administrative
Agent or, uponthe occurrence and during the continuance of an Event of
Default, any Lender upon reasonable prior notice to Holdings (prior to a
QualifiedIPO) or the Borrower to discuss the affairs, finances and condition
of Holdings (prior to a Qualified IPO), the Borrower or any of theSubsidiaries
with the officers thereof and independent accountants therefor (so long as the
Borrower has the opportunity to participatein any such discussions with such
accountants), in each case, subject to reasonable requirements of
confidentiality, including requirementsimposed by law or by contract.
Section 5.08
Use of Proceeds
. Use the proceeds of the Loans made and Letters of Credit issued in the
manner contemplated by Section 3.12.
Section 5.09
Compliance with Environmental Laws
. Comply, and make reasonable efforts to cause all lessees and other persons
occupyingits properties to comply, with all Environmental Laws applicable to
its operations and properties; and obtain and renew all material authorizationsa
nd permits required pursuant to Environmental Law for its operations and
properties, in each case in accordance with Environmental Laws,except, in each
case with respect to this Section 5.09, to the extent the failure to do so
would not reasonably be expected to have,individually or in the aggregate, a
Material Adverse Effect.
Section 5.10
Further Assurances; Additional Security
.
(a)
Execute any and all further documents, financing statements, agreements and
instruments, and take all such further actions (includingthe filing and
recording of financing statements, fixture filings, Mortgages and other
documents), that the Collateral Agent may reasonablyrequest (including,
without limitation, those required by applicable law), to satisfy the
Collateral and Guarantee Requirement and tocause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan Parties
and provide to the CollateralAgent, from time to time upon reasonable request,
evidence reasonably satisfactory to the Collateral Agent as to the perfection
and priorityof the Liens created or intended to be created by the Security
Documents.
(b)
If any asset (other than Real Property) that has an individual fair market
value (as determined in good faith by the Borrower)in an amount greater than
$10,000,000 is acquired by the Borrower or any Subsidiary Loan Party after the
Closing Date or owned by an entityat the time it becomes a Subsidiary Loan
Party (in each case other than (x) assets constituting Collateral under a
Security Documentthat become subject to the Lien of such Security Document
upon acquisition thereof and (y) assets constituting Excluded Property),the
Borrower or such Subsidiary Loan Party, as applicable, will (i) notify the
Collateral Agent of such acquisition or ownershipand (ii) cause such asset to
be subjected to a Lien (subject to any Permitted Liens) securing the
Obligations by, and take, and causethe Subsidiary Loan Parties to take, such
actions as shall be reasonably requested by the Collateral
133
Agent to grant and perfect such Liens,including actions described in clause
(a) of this Section 5.10, all at the expense of the Loan Parties, subject to
clause (g)below.
(c)
(i) Grant and cause each of the Subsidiary Loan Parties to grant to the
Collateral Agent security interests in, and mortgageson, any Material Real
Property of the Borrower or such Subsidiary Loan Parties, as applicable, that
are not Mortgaged Property as of theClosing Date, to the extent acquired after
the Closing Date, within 120 days after such acquisition (or such later date
as the CollateralAgent may agree in its reasonable discretion) pursuant to
documentation substantially in the form of Exhibit E (with such changes as
arereasonably consented to by the Collateral Agent to account for local law
matters) or in such other form as is reasonably satisfactoryto the Collateral
Agent and the Borrower (each, an "
Additional Mortgage
"), which security interest and mortgage shallconstitute valid and enforceable
Liens subject to no other Liens except Permitted Liens, (ii) record or file,
and cause each suchSubsidiary to record or file, the Additional Mortgage or
instruments related thereto in such manner and in such places as is requiredby
law to establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent (for the benefit of the Secured Parties)required to be
granted pursuant to the Additional Mortgages and pay, and cause each such
Subsidiary to pay, in full, all Taxes, fees andother charges required to be
paid in connection with such recording or filing, in each case subject to
clause (g) below, and (iii) deliverto the Collateral Agent an updated Schedule
1.01(E) reflecting such additional Mortgaged Properties. Unless otherwise
waived by the CollateralAgent, with respect to each such Additional Mortgage,
the Borrower shall cause the requirements set forth in clauses (f) and (g) of
thedefinition of "Collateral and Guarantee Requirement" to be satisfied with
respect to such Material Real Property.
(d)
If any additional direct or indirect Subsidiary of the Borrower is formed or
acquired after the Closing Date (including, withoutlimitation, pursuant to a
Delaware LLC Division or Delaware LP Division) (with any Subsidiary
Redesignation resulting in an UnrestrictedSubsidiary becoming a Subsidiary
being deemed to constitute the acquisition of a Subsidiary) and if such
Subsidiary is a Subsidiary LoanParty, within 15 Business Days after the date
such Subsidiary is formed or acquired (or such longer period as the Collateral
Agent mayagree in its reasonable discretion), notify the Collateral Agent
thereof and, within 20 Business Days after the date such Subsidiary isformed
or acquired or such longer period as the Collateral Agent may agree in its
reasonable discretion (or, with respect to clauses (f),(g) and (h) of the
definition of "Collateral and Guarantee Requirement," within 120 days after
such formation or acquisitionor such longer period as set forth therein or as
the Collateral Agent may agree in its reasonable discretion, as applicable),
cause theCollateral and Guarantee Requirement to be satisfied with respect to
such Subsidiary and with respect to any Equity Interest in or Indebtednessof
such Subsidiary owned by or on behalf of any Loan Party, subject to clause (g)
below.
(e)
If any additional Foreign Subsidiary of the Borrower is formed or acquired
after the Closing Date (with any Subsidiary Redesignationresulting in an
Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the
acquisition of a Subsidiary) and if suchSubsidiary is a "first tier" Foreign
Subsidiary of a Loan Party, within 15 Business Days after the date such
Foreign Subsidiaryis formed or acquired (or such longer period as the
Collateral Agent may agree in its reasonable discretion), notify the
Collateral Agentthereof and, within 50 Business Days after the date such
Foreign Subsidiary is formed or acquired or such longer period as the
CollateralAgent may agree in its reasonable discretion, cause the Collateral
and Guarantee Requirement to be satisfied with respect to any EquityInterest
in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to
clause (g) below.
(f)
Furnish to the Collateral Agent prompt written notice of any change (A) in any
Loan Party's corporate or organizationname, (B) in any Loan Party's identity
or organizational
134
structure, (C) in any Loan Party'sorganizational identification number, (D) in
any Loan Party's jurisdiction of organization or (E) in the location of the
chiefexecutive office of any Loan Party that is not a registered organization;
provided
, that the Borrower shall not effect or permitany such change unless all
filings have been made, or will have been made within 30 days following such
change (or such longer periodas the Collateral Agent may agree in its
reasonable discretion), under the Uniform Commercial Code that are required in
order for theCollateral Agent to continue at all times following such change
to have a valid, legal and perfected security interest in all the Collateralin
which a security interest may be perfected by such filing, for the benefit of
the Secured Parties.
(g)
The Collateral and Guarantee Requirement and the other provisions of this
Section 5.10 and the other Loan Documents with respectto Collateral need not
be satisfied with respect to any of the following (collectively, the "
Excluded Property
"): (i) anyReal Property other than Material Real Property, (ii) motor
vehicles and other assets subject to certificates of title and letterof credit
rights (in each case, except to the extent a Lien on such assets or such
rights can be perfected by filing a UCC-1) and commercialtort claims with a
value of less than $10,000,000, (iii) pledges and security interests
prohibited by applicable law, rule, regulationor contractual obligation
permitted under the Loan Documents and binding on assets to the extent in
existence on the Closing Date or onthe date of acquisition thereof and not
entered into in contemplation of acquisition of such asset (in each case,
except to the extentsuch prohibition is unenforceable after giving effect to
the applicable anti-assignment provisions of Article 9 of the Uniform
CommercialCode) or which could require governmental (including regulatory)
consent, approval, license or authorization to be pledged (unless suchconsent,
approval, license or authorization has been received), (iv) assets to the
extent a security interest in such assets couldreasonably be expected to
result in material adverse tax consequences as determined in good faith by the
Borrower in consultation withthe Administrative Agent, (v) any lease, license
or other agreement to the extent that a grant of a security interest therein
wouldviolate or invalidate such lease, license or agreement or create a right
of termination in favor of any other party thereto (other thanHoldings, the
Borrower or any Guarantor) after giving effect to the applicable anti-assignment
provisions of Article 9 of the UniformCommercial Code, (vi) those assets as
to which the Collateral Agent and the Borrower reasonably agree that the cost
or other consequenceof obtaining such a security interest or perfection
thereof are excessive in relation to the value afforded thereby, (vii) any
governmentallicenses or state or local licenses, franchises, charters and
authorizations, to the extent security interests in such licenses,
franchises,charters or authorizations are prohibited or restricted thereby
after giving effect to the applicable anti-assignment provisions of Article
9of the Uniform Commercial Code, (viii) any "intent-to-use" applications for
trademark or service mark registrations filedpursuant to Section 1(b) of the
Lanham Act, 15 U.S.C. (s)1051, unless and until an Amendment to Allege Use or
a Statement of Use underSection 1(c) or 1(d) of the Lanham Act has been filed,
(ix) other customary exclusions under applicable local law or in applicable
localjurisdictions to be set forth in applicable Security Documents, (x)
Securitization Assets sold to any Special Purpose SecuritizationSubsidiary or
otherwise pledged, factored, transferred or sold in connection with any
Permitted Securitization Financing, and any otherassets subject to Liens
securing Permitted Securitization Financings, (xi) any Excluded Securities,
(xii) any Third Party Funds,(xiii) any equipment or other asset that is
subject to a Lien permitted by any of clauses (c)(i), (i), (j) or (aa) of
Section 6.02 oris otherwise subject to a purchase money debt or a Capitalized
Lease Obligation, in each case, as permitted by Section 6.01, if the
contractor other agreement providing for such debt or Capitalized Lease
Obligation prohibits or requires the consent of any person (other
thanHoldings, the Borrower or a Subsidiary Loan Party) as a condition to the
creation of any other security interest on such equipment orasset and, in each
case, such prohibition or requirement is permitted hereunder after giving
effect to the applicable anti-assignmentprovisions of Article 9 of the Uniform
Commercial Code or other applicable law, (xiv) all assets of Holdings other
than Equity Interestsof the Borrower and the proceeds thereof directly held by
Holdings and pledged pursuant to the Holdings Guarantee and Pledge
Agreementand (xv) any other exceptions mutually agreed upon between the
Borrower and the
135
Collateral Agent;
provided
, thatthe Borrower may in its sole discretion elect to exclude any property
from the definition of "Excluded Property." Notwithstandinganything herein to
the contrary, (A) the Collateral Agent may grant extensions of time or waiver
of requirement for the creationor perfection of security interests in or the
obtaining of insurance (including title insurance) or surveys with respect to
particularassets (including extensions beyond the Closing Date for the
perfection of security interests in the assets of the Loan Parties on
suchdate) where it reasonably determines, in consultation with the Borrower,
that perfection or obtaining of such items cannot be accomplishedwithout undue
effort or expense by the time or times at which it would otherwise be required
by this Agreement or the other Loan Documents,(B) no control agreement or
control, lockbox or similar arrangement shall be required with respect to any
deposit accounts, securitiesaccounts or commodities accounts, (C) no landlord,
mortgagee or bailee waivers shall be required, (D) no foreign-law governed
securitydocuments or perfection under foreign law shall be required, (E) no
notice shall be required to be sent to account debtors or othercontractual
third parties prior to an Event of Default, (F) Liens required to be granted
from time to time pursuant to, or any other requirementsof, the Collateral and
Guarantee Requirement and the Security Documents shall be subject to
exceptions and limitations set forth in theSecurity Documents and (G) to the
extent any Mortgaged Property is located in a jurisdiction with mortgage
recording or similar tax,the amount secured by the Security Document with
respect to such Mortgaged Property shall be limited to the fair market value
of suchMortgaged Property as determined in good faith by the Borrower (subject
to any applicable laws in the relevant jurisdiction or such lesseramount
agreed to by the Collateral Agent).
Section 5.11
Rating
. Exercise commercially reasonable efforts to maintain (a) public ratings (but
not to obtain a specific rating) fromMoody's and S&P for the Term B-1 Loans
and (b) public corporate credit ratings and corporate family ratings (but, in
each case,not to obtain a specific rating) from Moody's and S&P in respect of
the Borrower.
Section 5.12
Post-Closing
.
(a)
With respect to each Closing Date Mortgaged Property, cause the Collateral and
Guarantee Requirement to be satisfied.
(b)
Take all necessary actions to satisfy the items described on Schedule 5.12
within the applicable period of time specifiedin such Schedule (or such longer
period as the Administrative Agent may agree in its reasonable discretion).
Article VI
Negative Covenants
The Borrower covenants andagrees with each Lender that, until the Termination
Date, unless the Required Lenders (or, in the case of Section 6.11, the
RequiredRevolving Facility Lenders voting as a single Class) shall otherwise
consent in writing, the Borrower will not, and will not permit anyof the
Subsidiaries to:
Section 6.01
Indebtedness
. Incur, create, assume or permit to exist any Indebtedness, except:
(a)
(i) Indebtedness existing or committed on the Closing Date (
provided
, that any such Indebtedness that is (x) not intercompanyIndebtedness and (y)
in excess of $5,000,000 shall be set forth on Schedule 6.01), and (ii) any
Permitted Refinancing Indebtednessincurred to Refinance such Indebtedness
(other than intercompany Indebtedness Refinanced with Indebtedness owed to a
person not affiliatedwith the Borrower or any Subsidiary);
136
(b)
(i) Indebtedness created hereunder (including pursuant to Section 2.21
(whether prior to, on or after the Ninth IncrementalAssumption and Amendment
Agreement Effective Date)) and under the other Loan Documents, and (ii) any
Permitted Refinancing Indebtednessincurred to Refinance such Indebtedness;
(c)
Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements
entered into for non-speculative purposes;
(d)
Indebtedness owed to (including obligations in respect of letters of credit or
bank guarantees or similar instruments for the benefitof) any person providing
workers' compensation, health, disability or other employee benefits or
property, casualty or liabilityinsurance to the Borrower or any Subsidiary,
pursuant to reimbursement or indemnification obligations to such person, in
each case inthe ordinary course of business or consistent with past practice
or industry practices;
(e)
Indebtedness of the Borrower to Holdings or any Subsidiary and of any
Subsidiary to Holdings, the Borrower or any other Subsidiary;
provided
, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party
owing to the Loan Parties incurred pursuantto this Section 6.01(e) shall be
subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any
Subsidiary thatis not a Loan Party incurred pursuant to this Section 6.01(e)
shall be subordinated to the Loan Obligations under this Agreement on
subordinationterms described in the intercompany note substantially in the
form of Exhibit I hereto or on other subordination terms reasonably
satisfactoryto the Administrative Agent and the Borrower;
(f)
Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety
bonds and completion guarantees and similar obligations,in each case provided
in the ordinary course of business or consistent with past practice or
industry practices, including those incurredto secure health, safety and
environmental obligations in the ordinary course of business or consistent
with past practice or industrypractices;
(g)
Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn againstinsufficient
funds in the ordinary course of business or other cash management services, in
each case incurred in the ordinary courseof business;
(h)
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person
merged or consolidated with the Borrower or any Subsidiaryafter the Closing
Date and Indebtedness otherwise incurred or assumed by the Borrower or any
Subsidiary in connection with the acquisitionof assets or Equity Interests
(including a Permitted Business Acquisition), where such acquisition, merger
or consolidation is not prohibitedby this Agreement;
provided
, that, (w) in the case of any such Indebtedness secured by Liens on
Collateral that are Other FirstLiens, the Net First Lien Leverage Ratio on a
Pro Forma Basis immediately after giving effect to such acquisition, merger or
consolidation,the incurrence or assumption of such Indebtedness and the use of
proceeds thereof and any related transactions is (I) not greater than3.20 to
1.00 or (II) not greater than the Net First Lien Leverage Ratio in effect
immediately prior thereto, (x) in the case of anysuch Indebtedness secured by
Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a
Pro Forma Basis immediatelyafter giving effect to such acquisition, merger or
consolidation, the incurrence or assumption of such Indebtedness and the use
of proceedsthereof and any related transactions is (I) not greater than 3.60
to 1.00 or (II) not greater than the Net Secured Leverage Ratio in
effectimmediately prior thereto, (y) in the case of any other such
Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediatelyafter
giving effect to such acquisition, merger or consolidation, the incurrence or
assumption of such Indebtedness and the use of proceedsthereof and any related
transactions is (I) not less than 2.00 to 1.00 or (II) not less than the
Interest Coverage Ratio in effect immediatelyprior thereto and (z) in the case
of any such Indebtedness incurred under this clause (h) by a Subsidiary other
than a Subsidiary
137
Loan Party, the aggregate outstandingprincipal amount of such Indebtedness
immediately after giving effect to such acquisition, merger or consolidation,
the incurrence ofsuch Indebtedness and the use of proceeds thereof and any
related transactions shall not exceed the greater of $350,000,000 and 0.12
timesthe EBITDA calculated on a Pro Forma Basis for the then most recently
ended Test Period;
provided
,
further
, that the incurrence(but not assumption) of term loan Indebtedness pursuant
to clause (i)(w) above shall be subject to the last paragraph of Section
6.02;and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any
such Indebtedness;
(i)
(x) Capitalized Lease Obligations, mortgage financings and other Indebtedness
incurred by the Borrower or any Subsidiary priorto or within 270 days after
the acquisition, lease, construction, repair, replacement or improvement of
the respective property (realor personal, and whether through the direct
purchase of property or the Equity Interest of any person owning such
property) permittedunder this Agreement in order to finance such acquisition,
lease, construction, repair, replacement or improvement, in an aggregate
principalamount that immediately after giving effect to the incurrence of such
Indebtedness and the use of proceeds thereof, together with theaggregate
principal amount of any other Indebtedness outstanding pursuant to this
Section 6.01(i)(x), would not exceed the greaterof $250,000,000 and 0.075
times the EBITDA calculated on a Pro Forma Basis for the then most recently
ended Test Period, and (y) anyPermitted Refinancing Indebtedness in respect
thereof;
(j)
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the
Borrower or any Subsidiary arising from any Sale andLease-Back Transaction
that is permitted under Section 6.03, and (ii) any Permitted Refinancing
Indebtedness in respect thereof;
(k)
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate
principal amount that, immediately after giving effectto the incurrence of
such Indebtedness and the use of proceeds thereof, together with the aggregate
principal amount of any other Indebtednessoutstanding pursuant to this Section
6.01(k), would not exceed the greater of $350,000,000 and 0.12 times the
EBITDA calculated ona Pro Forma Basis for the then most recently ended Test
Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l)
Indebtedness of the Borrower or any Subsidiaries in an aggregate outstanding
principal amount not greater than 100% of the netcash proceeds received by the
Borrower after the Closing Date from (x) the issuance or sale of its Qualified
Equity Interests or (y) acontribution to its common equity with the net cash
proceeds from the issuance and sale by Holdings or a Parent Entity of its
QualifiedEquity Interests or a contribution to its common equity (in each case
of (x) and (y), other than proceeds from the sale of Equity Intereststo, or
contributions from, the Borrower or any of its Subsidiaries), to the extent
such net cash proceeds do not constitute Excluded Contributions;
(m)
Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any
Indebtedness of the Borrower or any SubsidiaryLoan Party permitted to be
incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan
Party of Indebtedness otherwisepermitted hereunder of any Subsidiary that is
not a Subsidiary Loan Party to the extent such Guarantees are permitted by
Section 6.04(other than Section 6.04(v)), (iii) by any Subsidiary that is not
a Subsidiary Loan Party of Indebtedness of another Subsidiarythat is not a
Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of
Subsidiaries that are not Subsidiary Loan Partiesincurred for working capital
purposes in the ordinary course of business on ordinary business terms so long
as such Indebtedness is permittedto be incurred under Section 6.01(t) to the
extent such Guarantees are permitted by Section 6.04 (other than Section
6.04(v));
provided
, that Guarantees by the Borrower or any Subsidiary Loan Party under this
Section 6.01(m) of any other Indebtednessof a person that is
138
subordinated to other Indebtedness ofsuch person shall be expressly
subordinated to the Loan Obligations to at least the same extent as such
underlying Indebtedness is subordinated;
(n)
Indebtedness arising from agreements of the Borrower or any Subsidiary
providing for indemnification, adjustment of purchase oracquisition price or
similar obligations (including earn-outs), in each case, incurred or assumed
in connection with the 2015 Transactions,the ADT Transactions, any Permitted
Business Acquisition, other Investments or the disposition of any business,
assets or a Subsidiarynot prohibited by this Agreement;
(o)
Indebtedness in respect of letters of credit, bank guarantees, warehouse
receipts or similar instruments issued to support performanceobligations and
trade letters of credit (other than obligations in respect of other
Indebtedness) in the ordinary course of business orconsistent with past
practice or industry practices;
(p)
(i) Indebtedness, including Indebtedness in respect of the Second Priority
Senior Secured Notes, in an aggregate principal amountoutstanding pursuant to
this Section 6.01(p) not to exceed $1,246,000,000 and (ii) any Permitted
Refinancing Indebtedness in respect thereof;
(q)
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so
long as immediately after giving effect to theincurrence of such Indebtedness
and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro
Forma Basis is not greaterthan 3.20 to 1.00;
provided
that (x) the aggregate principal amount of Indebtedness outstanding under this
clause (q)(i) atsuch time that is incurred by a Subsidiary other than a
Subsidiary Loan Party shall not exceed, when taken together with the
aggregateprincipal amount of any other Indebtedness outstanding pursuant to
this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i)that are
incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater
of $475,000,000 and 0.17 times the EBITDA calculatedon a Pro Forma Basis for
the then most recently ended Test Period and (y) the incurrence of term loan
Indebtedness pursuant to thisclause (q)(i) shall be subject to the last
paragraph of Section 6.01 and the last paragraph of Section 6.02, and (ii) any
PermittedRefinancing Indebtedness in respect thereof;
(r)
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long
as immediately after giving effect to the incurrenceof such Indebtedness and
the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma
Basis is not greater than 3.60 to1.00;
provided
that (x) the aggregate principal amount of Indebtedness outstanding under this
clause (r)(i) at such time thatis incurred by a Subsidiary other than a
Subsidiary Loan Party shall not exceed, when taken together with the aggregate
principal amountof any other Indebtedness outstanding pursuant to Section
6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurredby
Subsidiaries other than the Subsidiary Loan Parties, the greater of
$475,000,000 and 0.17 times the EBITDA calculated on a Pro FormaBasis for the
then most recently ended Test Period and (y) the incurrence of any term loan
Indebtedness pursuant to this clause (r)(i)shall be subject to the last
paragraph of this Section 6.01, and (ii) any Permitted Refinancing
Indebtedness in respect thereof;
(s)
(i) unsecured Indebtedness so long as immediately after giving effect to the
incurrence of such Indebtedness and the use of proceedsthereof, the Interest
Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00;
provided
that (x) the aggregate principalamount of Indebtedness outstanding under this
clause (s)(i) at such time that is incurred by a Subsidiary other than a
SubsidiaryLoan Party shall not exceed, when taken together with the aggregate
principal amount of any other Indebtedness outstanding pursuant toSection
6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred
by Subsidiaries other than the Subsidiary Loan Parties,the greater of
$475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the
then most recently ended Test Period and(y) the incurrence of any term loan
Indebtedness pursuant to this clause (s)(i)
139
shall be subject to the last paragraphof this Section 6.01, and (ii) any
Permitted Refinancing Indebtedness in respect thereof;
(t)
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an
aggregate principal amount outstanding that, immediatelyafter giving effect to
the incurrence of such Indebtedness and the use of proceeds thereof, together
with the aggregate principal amountof any other Indebtedness outstanding
pursuant to this Section 6.01(t), would not exceed the greater of $350,000,000
and 0.12 timesthe EBITDA calculated on a Pro Forma Basis for the then most
recently ended Test Period, and (ii) any Permitted Refinancing Indebtednessin
respect thereof;
(u)
Indebtedness incurred in the ordinary course of business in respect of
obligations of the Borrower or any Subsidiary to pay thedeferred purchase
price of goods or services or progress payments in connection with such goods
and services;
provided
, that suchobligations are incurred in connection with open accounts extended
by suppliers on customary trade terms in the ordinary course of businessand
not in connection with the borrowing of money or any Hedging Agreements;
(v)
Indebtedness representing deferred compensation to employees, consultants or
independent contractors of the Borrower (or, to theextent such work is done
for the Borrower or its Subsidiaries, any direct or indirect parent thereof)
or any Subsidiary incurred in theordinary course of business;
(w)
Indebtedness in connection with Permitted Securitization Financings;
(x)
obligations in respect of Cash Management Agreements;
(y)
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred
in respect thereof;
(z)
(i) Indebtedness in an aggregate principal amount outstanding not to exceed
the Incremental Amount available at the applicabletime of determination set
forth in the definition thereof;
provided
that the incurrence of term loan Indebtedness pursuant to thisclause (z)(i)
shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted
Refinancing Indebtedness in respect thereof;
(aa)
Guarantees of Indebtedness under customer financing lines of credit entered
into in the ordinary course of business;
(bb)
(i) Indebtedness of, incurred on behalf of, or representing Guarantees of
Indebtedness of, joint ventures in an aggregate principalamount that,
immediately after giving effect to the incurrence of such Indebtedness and the
use of proceeds thereof, together with theaggregate principal amount of any
other Indebtedness outstanding pursuant to this Section 6.01(bb), would not
exceed the greaterof $150,000,000 and 0.05 times the EBITDA calculated on a
Pro Forma Basis for the then most recently ended Test Period, and (ii)
anyPermitted Refinancing Indebtedness in respect thereof;
(cc)
Indebtedness issued by the Borrower or any Subsidiary to current or former
officers, directors and employees, their respectiveestates, spouses or former
spouses to finance the purchase or redemption of Equity Interests of Holdings
or any Parent Entity permittedby Section 6.06;
(dd)
Indebtedness consisting of obligations of the Borrower or any Subsidiary under
deferred compensation or other similar arrangementsincurred by such person in
connection with
140
the 2015 Transactions, the ADT Transactionsand Permitted Business Acquisitions
or any other Investment permitted hereunder;
(ee)
Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint
venture (regardless of the form of legal entity) thatis not a Subsidiary
arising in the ordinary course of business in connection with the cash
management operations (including with respectto intercompany self-insurance
arrangements) of the Borrower and its Subsidiaries;
(ff)
Indebtedness consisting of (i) the financing of insurance premiums or (ii)
take-or-pay obligations contained in supplyarrangements, in each case, in the
ordinary course of business;
(gg)
Indebtedness supported by a Letter of Credit, in a principal amount not in
excess of the stated amount of such Letter of Credit(or a letter of credit
issued under any other revolving credit or letter of credit facility permitted
by Section 6.01);
(hh)
(i) Indebtedness, including Indebtedness in respect of the 2024 First Lien
Notes and the 2026 First Lien Notes, in an aggregateprincipal amount
outstanding pursuant to this Section 6.01(hh)(i) not to exceed $2,100,000,000
and (ii) any Permitted Refinancing Indebtednessin respect thereof;
(ii)
(x)(i) Indebtedness of the Borrower or any Subsidiary Loan Party, including
Indebtedness in respect of the Existing ADT Roll-OverNotes outstanding as of
the Ninth Incremental Assumption and Amendment Agreement Effective Date, in an
aggregate principal amount outstandingpursuant to this Section 6.01(ii)(x)(i)
not to exceed $3,450,000,000 plus, until the 30th day after the Ninth
Incremental Assumption andAmendment Agreement Effective Date, $300,000,000
representing the aggregate principal amount of 2020 Notes called for
redemption on theNinth Incremental Assumption and Amendment Agreement
Effective Date and (ii) any Indebtedness that constitutes a Refinancing of any
ExistingADT Roll-Over Notes that have a final maturity date on or before the
Term B-1 Facility Maturity Date and (y) any Permitted RefinancingIndebtedness
in respect thereof; and
(jj)
all premium (if any, including tender premiums) expenses, defeasance costs,
interest (including post-petition interest), fees,expenses, charges and
additional or contingent interest on obligations described in clauses (a)
through (ii) above or refinancings thereof.
For purposes of determiningcompliance with this Section 6.01 or Section 6.02,
the amount of any Indebtedness denominated in any currency other than
Dollarsshall be calculated based on customary currency exchange rates in
effect, in the case of such Indebtedness incurred (in respect of termIndebtednes
s) or committed (in respect of revolving Indebtedness) on or prior to the
Closing Date, on the Closing Date and, in the caseof such Indebtedness
incurred (in respect of term Indebtedness) or committed (in respect of
revolving Indebtedness) after the ClosingDate, on the date on which such
Indebtedness was incurred (in respect of term Indebtedness) or committed (in
respect of revolving Indebtedness);
provided
, that if such Indebtedness is incurred to refinance other Indebtedness
denominated in a currency other than Dollars (orin a different currency from
the Indebtedness being refinanced), and such refinancing would cause the
applicable Dollar-denominated restrictionto be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing,
such Dollar-denominatedrestriction shall be deemed not to have been exceeded
so long as the principal amount of such refinancing Indebtedness does not
exceed(i) the outstanding or committed principal amount, as applicable, of
such Indebtedness being refinanced
plus
(ii) theaggregate amount of fees, underwriting discounts, premiums (including
tender premiums), defeasance costs and other costs and expensesincurred in
connection with such refinancing.
Further, for purposes ofdetermining compliance with this Section 6.01, (A)
Indebtedness need not be permitted solely by reference to one category
ofpermitted Indebtedness (or any portion thereof)
141
described in Sections 6.01(a) through(jj) but may be permitted in part under
any combination thereof and (B) in the event that an item of Indebtedness (or
any portionthereof) meets the criteria of one or more of the categories of
permitted Indebtedness (or any portion thereof) described in Sections
6.01(a)through (jj), the Borrower may, in its sole discretion, classify or
reclassify, or later divide, classify or reclassify (as if incurredat such
later time), such item of Indebtedness (or any portion thereof) in any manner
that complies with this Section 6.01 and willbe entitled to only include the
amount and type of such item of Indebtedness (or any portion thereof) in one
of the above clauses (orany portion thereof) and such item of Indebtedness (or
any portion thereof) shall be treated as having been incurred or existing
pursuantto only such clause or clauses (or any portion thereof) without giving
pro forma effect to such item (or portion thereof) when calculatingthe amount
of Indebtedness that may be incurred pursuant to any other clause;
provided
, that (w) all Indebtedness outstanding onthe Ninth Incremental Assumption and
Amendment Agreement Effective Date under this Agreement shall at all times be
deemed to have beenincurred pursuant to clause (b) of this Section 6.01, (x)
all Indebtedness outstanding on the Ninth Incremental Assumption and
AmendmentAgreement Effective Date in respect of the Second Priority Senior
Secured Notes shall at all times be deemed to have been incurred pursuantto
clause (p) of this Section 6.01, (y) all Indebtedness outstanding on the Ninth
Incremental Assumption and Amendment Agreement EffectiveDate in respect of the
Existing ADT Roll-Over Notes shall at all times be deemed to have been
incurred pursuant to clause (ii) of thisSection 6.01 and (z) all Indebtedness
outstanding on the Ninth Incremental Assumption and Amendment Agreement
Effective Date in respectof the 2024 First Lien Notes and the 2026 First Lien
Notes shall at all times be deemed to have been incurred pursuant to clause
(hh)of this Section 6.01. In addition, with respect to any Indebtedness that
was permitted to be incurred hereunder on the date of such incurrence,any
Increased Amount of such Indebtedness shall also be permitted hereunder after
the date of such incurrence.
This Agreement will not treat(1) unsecured Indebtedness as subordinated or
junior to secured Indebtedness merely because it is unsecured or (2) senior
Indebtednessas subordinated or junior to any other senior Indebtedness merely
because it has a junior priority with respect to the same collateral.
With respect to any Indebtednessincurred pursuant to Sections 6.01(q)(i),
6.01(r)(i) or 6.01(s)(i), (A) the final maturity date of any such Indebtedness
shall be no earlierthan the Term B-1 Facility Maturity Date and (B) the
Weighted Average Life to Maturity of such Indebtedness shall be no shorter
than theremaining Weighted Average Life to Maturity of the Term B-1 Loans.
Section 6.02
Liens
. Create, incur, assume or permit to exist any Lien on any property or assets
(including stock or other securitiesof any person) of the Borrower or any
Subsidiary at the time owned by it or on any income or revenues or rights in
respect of any thereof,except the following (collectively, "
Permitted Liens
"):
(a)
Liens on property or assets of the Borrower and the Subsidiaries existing on
the Closing Date (or created following the ClosingDate pursuant to agreements
in existence on the Closing Date requiring the creation of such Liens) and, to
the extent securing Indebtednessin an aggregate principal amount in excess of
$5,000,000, set forth on Schedule 6.02(a) and any modifications, replacements,
renewalsor extensions thereof;
provided
, that such Liens shall secure only those obligations that they secure on the
Closing Date (andany Permitted Refinancing Indebtedness in respect of such
obligations permitted by Section 6.01) and shall not subsequently applyto any
other property or assets of the Borrower or any Subsidiary other than (A)
after-acquired property that is affixed or incorporatedinto the property
covered by such Lien, and (B) proceeds and products thereof;
(b)
any Lien created under the Loan Documents (including Liens created under the
Security Documents securing obligations in respectof Secured Hedge Agreements
and Secured
142
Cash Management Agreements) or permittedin respect of any Mortgaged Property
by the terms of the applicable Mortgage;
(c)
any Lien on any property or asset of the Borrower or any Subsidiary securing
Indebtedness or Permitted Refinancing Indebtednesspermitted by Section 6.01(h);
provided
, that (i) in the case of Liens that do not extend to the Collateral, such
Liendoes not apply to any other property or assets of the Borrower or any of
the Subsidiaries not securing such Indebtedness at the date ofthe acquisition
of such property or asset and accessions and additions thereto and proceeds
and products thereof (other than after-acquiredproperty required to be
subjected to such Lien pursuant to the terms of such Indebtedness (and
refinancings thereof)), (ii) in the caseof Liens on the Collateral that are
(or are intended to be) junior in priority to the Liens securing the Term B-1
Loans, such Liens shallbe subject to a Permitted Junior Intercreditor
Agreement and (iii) in the case of Liens on the Collateral that are (or are
intended tobe) pari passu with the Liens on the Collateral securing the Term
B-1 Loans, (x) such Liens shall be subject to a Permitted Pari PassuIntercredito
r Agreement and (y) such Liens shall be subject to the last paragraph of this
Section 6.02;
(d)
Liens for Taxes, assessments or other governmental charges or levies not yet
delinquent by more than 30 days or that are beingcontested in compliance with
Section 5.03;
(e)
Liens imposed by law, such as landlord's, carriers', warehousemen's,
mechanics', materialmen's, repairmen's,supplier's, construction or other like
Liens, securing obligations that are not overdue by more than 30 days or that
are being contestedin good faith by appropriate proceedings and in respect of
which, if applicable, the Borrower or any Subsidiary shall have set aside
onits books reserves in accordance with GAAP;
(f)
(i) pledges and deposits and other Liens made in the ordinary course of
business in compliance with the Federal EmployersLiability Act or any other
workers' compensation, unemployment insurance and other social security laws
or regulations and depositssecuring liability to insurance carriers under
insurance or self-insurance arrangements in respect of such obligations and
(ii) pledgesand deposits and other Liens securing liability for reimbursement
or indemnification obligations of (including obligations in respectof letters
of credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance tothe Borrower or any Subsidiary;
(g)
deposits and other Liens to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than CapitalizedLease
Obligations), statutory obligations, surety and appeal bonds, performance and
return of money bonds, bids, leases, government contracts,trade contracts,
agreements with utilities, and other obligations of a like nature (including
letters of credit in lieu of any such bondsor to support the issuance thereof)
incurred in the ordinary course of business, including those incurred to
secure health, safety andenvironmental obligations in the ordinary course of
business;
(h)
zoning restrictions, easements, survey exceptions, trackage rights, leases
(other than Capitalized Lease Obligations), licenses,special assessments,
rights-of-way, covenants, conditions, restrictions and declarations on or with
respect to the use of Real Property,servicing agreements, development
agreements, site plan agreements and other similar encumbrances incurred in
the ordinary course of businessand title defects or irregularities that are of
a minor nature and that, in the aggregate, do not interfere in any material
respect withthe ordinary conduct of the business of the Borrower or any
Subsidiary;
(i)
Liens securing Indebtedness permitted by Section 6.01(i);
provided
, that such Liens do not apply to any property orassets of the Borrower or any
Subsidiary other than the property or assets acquired, leased, constructed,
replaced, repaired or improvedwith such Indebtedness (or the
143
Indebtedness Refinanced thereby) orsold in the applicable Sale and Lease-Back
Transaction, and accessions and additions thereto, proceeds and products
thereof, customarysecurity deposits and related property;
provided
,
further
, that individual financings provided by one lender may be cross-collateralizedt
o other financings provided by such lender (and its Affiliates) (it being
understood that with respect to any Liens on the Collateralbeing incurred
under this clause (i) to secure Permitted Refinancing Indebtedness, if Liens
on the Collateral securing the Indebtednessbeing Refinanced (if any) were
Junior Liens, then any Liens on such Collateral being incurred under this
clause (i) to secure PermittedRefinancing Indebtedness shall also be Junior
Liens);
(j)
Liens arising out of Sale and Lease-Back Transactions permitted under Section
6.03, so long as such Liens attach only to theproperty sold and being leased
in such transaction and any accessions and additions thereto or proceeds and
products thereof and relatedproperty;
(k)
Liens securing judgments that do not constitute an Event of Default under
Section 7.01(j);
(l)
Liens disclosed by the title insurance policies delivered on or subsequent to
the Closing Date and pursuant to the Collateral andGuarantee Requirement,
Section 5.10 or Schedule 5.12 and any replacement, extension or renewal of any
such Lien;
provided
,that such replacement, extension or renewal Lien shall not cover any property
other than the property that was subject to such Lien priorto such
replacement, extension or renewal;
provided
,
further
, that the Indebtedness and other obligations secured by suchreplacement,
extension or renewal Lien are permitted by this Agreement;
(m)
any interest or title of a lessor or sublessor under any leases or subleases
entered into by the Borrower or any Subsidiary inthe ordinary course of
business;
(n)
Liens that are contractual rights of set-off (i) relating to the establishment
of depository relations with banks and otherfinancial institutions not given
in connection with the issuance of Indebtedness, (ii) relating to pooled
deposits, sweep accounts,reserve accounts or similar accounts of the Borrower
or any Subsidiary to permit satisfaction of overdraft or similar obligations
incurredin the ordinary course of business of the Borrower or any Subsidiary,
including with respect to credit card charge-backs and similar obligations,or
(iii) relating to purchase orders and other agreements entered into with
customers, suppliers or service providers of the Borroweror any Subsidiary in
the ordinary course of business;
(o)
Liens (i) arising solely by virtue of any statutory or common law provision
relating to banker's liens, rights of set-offor similar rights, (ii) attaching
to commodity trading accounts or other commodity brokerage accounts incurred
in the ordinary courseof business, (iii) encumbering reasonable customary
initial deposits and margin deposits and similar Liens attaching to
brokerageaccounts incurred in the ordinary course of business and not for
speculative purposes, (iv) in respect of Third Party Funds or (v)in favor of
credit card companies pursuant to agreements therewith;
(p)
Liens securing obligations in respect of trade-related letters of credit,
bankers' acceptances or similar obligations permittedunder Section 6.01(f),
(k) or (o) and covering the property (or the documents of title in respect of
such property) financed by suchletters of credit, bankers' acceptances or
similar obligations and the proceeds and products thereof;
(q)
leases or subleases, licenses or sublicenses (including with respect to
Intellectual Property) granted to others in the ordinarycourse of business not
interfering in any material respect with the business of the Borrower and its
Subsidiaries, taken as a whole;
144
(r)
Liens in favor of customs and revenue authorities arising as a matter of law
to secure payment of customs duties in connectionwith the importation of goods;
(s)
Liens solely on any cash earnest money deposits made by the Borrower or any of
the Subsidiaries in connection with any letter ofintent or purchase agreement
in respect of any Investment permitted hereunder;
(t)
(i) Liens with respect to property or assets of any Subsidiary that is not a
Loan Party securing obligations of a Subsidiarythat is not a Loan Party
permitted under Section 6.01 and (ii) Liens with respect to property or assets
of the applicable jointventure or the Equity Interests of such joint venture
securing Indebtedness permitted under Section 6.01(bb);
(u)
Liens on any amounts held by a trustee under any indenture or other debt
agreement issued in escrow pursuant to customary escrowarrangements pending
the release thereof, or under any indenture or other debt agreement pursuant
to customary discharge, redemption ordefeasance provisions;
(v)
the prior rights of consignees and their lenders under consignment
arrangements entered into in the ordinary course of business;
(w)
agreements to subordinate any interest of the Borrower or any Subsidiary in
any accounts receivable or other proceeds arising frominventory consigned by
the Borrower or any of their Subsidiaries pursuant to an agreement entered
into in the ordinary course of business;
(x)
Liens arising from precautionary Uniform Commercial Code financing statements
regarding operating leases or other obligations notconstituting Indebtedness;
(y)
Liens (i) on Equity Interests of joint ventures (A) securing obligations of
such joint venture or (B) pursuant to therelevant joint venture agreement or
arrangement and (ii) on Equity Interests of Unrestricted Subsidiaries;
(z)
Liens on securities that are the subject of repurchase agreements constituting
Permitted Investments under clause (c) of thedefinition thereof;
(aa)
Liens in respect of Permitted Securitization Financings that extend only to
the assets subject thereto;
(bb)
Liens securing insurance premiums financing arrangements;
provided
, that such Liens are limited to the applicable unearnedinsurance premiums;
(cc)
in the case of Real Property that constitutes a leasehold interest, any Lien
to which the fee simple interest (or any superiorleasehold interest) is
subject;
(dd)
Liens securing Indebtedness or other obligation (i) of the Borrower or a
Subsidiary in favor of the Borrower or any SubsidiaryLoan Party and (ii) of
any Subsidiary that is not Loan Party in favor of any Subsidiary that is not a
Loan Party;
(ee)
Liens (i) on not more than $24,000,000 of deposits securing Hedging Agreements
entered into for non-speculative purposes and (ii)on cash or Permitted
Investments securing Hedging Agreements in the ordinary course of business
submitted for clearing in accordance withapplicable Requirements of Law;
145
(ff)
Liens on goods or inventory the purchase, shipment or storage price of which
is financed by a documentary letter of credit, bankguarantee or bankers'
acceptance issued or created for the account of the Borrower or any Subsidiary
in the ordinary course of business;
provided
, that such Lien secures only the obligations of the Borrower or such
Subsidiaries in respect of such letter of credit,bank guarantee or banker's
acceptance to the extent permitted under Section 6.01;
(gg)
Liens on Collateral that are Junior Liens, so long as immediately after giving
effect to the incurrence of the Indebtedness securedby such Junior Liens and
the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma
Basis is not greater than 3.60 to1.00;
(hh)
Liens on Collateral that are Other First Liens, so long as immediately after
giving effect to the incurrence of the Indebtednesssecured by such Other First
Liens and the use of proceeds thereof, the Net First Lien Leverage Ratio on a
Pro Forma Basis is not greaterthan 3.20 to 1.00;
provided
that such Liens shall be subject to the last paragraph of this Section 6.02;
(ii)
Liens on Collateral that are Other First Liens, so long as such Other First
Liens secure Indebtedness permitted by Section 6.01(b),6.01(h)(i)(w) (and
Permitted Refinancing Indebtedness in respect thereof), 6.01(q), 6.01(y),
6.01(z), 6.01(hh) or 6.01(ii);
(jj)
Liens arising out of conditional sale, title retention or similar arrangements
for the sale or purchase of goods by the Borroweror any of the Subsidiaries in
the ordinary course of business;
(kk)
Liens to secure any Indebtedness issued or incurred to Refinance (or
successive Indebtedness issued or incurred for subsequentRefinancings) as a
whole, or in part, any Indebtedness secured by any Lien permitted by this
Section 6.02;
provided
,
however
,that (v) with respect to any Liens on the Collateral being incurred under
this clause (kk), if Liens on the Collateral securing theIndebtedness being
Refinanced (if any) were Junior Liens, then such Liens on such Collateral
being incurred under this clause (kk) shallalso be Junior Liens, (w) with
respect to any Liens on the Collateral being incurred under this clause (kk),
if Liens on the Collateralsecuring the Indebtedness being Refinanced (if any)
were Other First Liens, then such Liens on such Collateral being incurred
under thisclause (kk) may also be Other First Liens, as applicable, (x) (other
than Liens contemplated by the foregoing clauses (v) and(w)) such new Lien
shall be limited to all or part of the same type of property that secured the
original Lien (
plus
improvementson and accessions to such property, proceeds and products thereof,
customary security deposits and any other assets pursuant to after-acquiredprope
rty clauses to the extent such assets secured (or would have secured) the
Indebtedness being Refinanced), (y) the Indebtednesssecured by such Lien at
such time is not increased to any amount greater than the sum of (A) the
outstanding principal amount (oraccreted value, if applicable) or, if greater,
committed amount of the applicable Indebtedness at the time the original Lien
became aLien permitted hereunder, (B) unpaid accrued interest and premium
(including tender premiums) and (C) an amount necessary topay any associated
underwriting discounts, defeasance costs, fees, commissions and expenses, and
(z) on the date of the incurrenceof the Indebtedness secured by such Liens,
the grantors of any such Liens shall be no different from the grantors of the
Liens securingthe Indebtedness being Refinanced or grantors that would have
been obligated to secure such Indebtedness or a Loan Party;
(ll)
other Liens with respect to property or assets of the Borrower or any
Subsidiary securing obligations in an aggregate outstandingprincipal amount
that, immediately after giving effect to the incurrence of such Liens, would
not exceed the greater of $350,000,000 and0.12 times the EBITDA calculated on
a Pro Forma Basis for the then most recently ended Test Period;
(mm)
[reserved]; and
146
(nn)
Liens that are Junior Liens, so long as such Junior Liens secure Indebtedness
permitted by Section 6.01(p), Section 6.01(hh)or Section 6.01(ii).
For purposes of determiningcompliance with this Section 6.02, (A) a Lien
securing an item of Indebtedness need not be permitted solely by reference
toone category of permitted Liens (or any portion thereof) described in
Sections 6.02(a) through (nn) but may be permitted in partunder any
combination thereof and (B) in the event that a Lien securing an item of
Indebtedness (or any portion thereof) meets thecriteria of one or more of the
categories of permitted Liens (or any portion thereof) described in Sections
6.02(a) through (nn),the Borrower may, in its sole discretion, classify or
reclassify, or later divide, classify or reclassify (as if incurred at such
latertime), such Lien securing such item of Indebtedness (or any portion
thereof) in any manner that complies with this Section 6.02 andwill be
entitled to only include the amount and type of such Lien or such item of
Indebtedness secured by such Lien (or any portion thereof)in one of the above
clauses and such Lien securing such item of Indebtedness (or portion thereof)
will be treated as being incurredor existing pursuant to only such clause or
clauses (or any portion thereof) without giving pro forma effect to such item
(or portionthereof) when calculating the amount of Liens or Indebtedness that
may be incurred pursuant to any other clause. In addition, with respectto any
Lien securing Indebtedness that was permitted to secure such Indebtedness at
the time of the incurrence of such Indebtedness, suchLien shall also be
permitted to secure any Increased Amount of such Indebtedness.
With respect to (x) Indebtednessincurred in the form of term loans that is
secured by Liens referred to in the proviso in Section 6.02(c)(iii) or Section
6.02(hh) or(y) any Indebtedness incurred (but not assumed) in the form of term
loans pursuant to Section 6.01(h)(i)(w) or incurred pursuantto Section
6.01(q)(i) or Section 6.01(z)(i) that is secured by Liens on the Collateral
that are Other First Liens (any such Indebtedness,"
Pari Term Loans
"), if the All-in Yield in respect of such Pari Term Loans exceeds the All-in
Yield in respect of theTerm B-1 Loans on the Closing Date by more than 0.50%
(such difference, the "
Pari Yield Differential
"), then the ApplicableMargin (or "SOFR floor" as provided in the following
proviso) applicable to the Term B-1 Loans on the Closing Date shall
beincreased such that after giving effect to such increase, the Pari Yield
Differential shall not exceed 0.50%;
provided
that, tothe extent any portion of the Pari Yield Differential is attributable
to a higher "SOFR floor" being applicable to such PariTerm Loans, such floor
shall only be included in the calculation of the Pari Yield Differential to
the extent such floor is greater thanthe Adjusted Term SOFR in effect for an
Interest Period of three months' duration at such time, and, with respect to
such excess,the "SOFR floor" applicable to such outstanding Term B-1 Loans
shall be increased to an amount not to exceed the "SOFRfloor" or applicable to
such Pari Term Loans prior to any increase in the Applicable Margin applicable
to such Term B-1 Loans thenoutstanding.
Section 6.03
Sale and Lease-Back Transactions
. Enter into any arrangement, directly or indirectly, with any person whereby
it shallsell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter,as part of
such transaction, rent or lease such property or other property that it
intends to use for substantially the same purposeor purposes as the property
being sold or transferred (a "
Sale and Lease-Back Transaction
");
provided
, thata Sale and Lease-Back Transaction shall be permitted (a) with respect to
(i) Excluded Property, (ii) property owned bythe Borrower or any Subsidiary
Loan Party that is acquired after the Closing Date so long as such Sale and
Lease-Back Transaction isconsummated within 365 days of the acquisition of
such property or (iii) property owned by any Subsidiary that is not a Loan
Partyregardless of when such property was acquired, and (b) with respect to
any other property owned by the Borrower or any SubsidiaryLoan Party, (x) if
such Sale and Lease-Back Transaction is of property owned by the Borrower or
any Subsidiary Loan Party as of the ClosingDate, the Net Proceeds therefrom
are used to prepay the Term Loans to the extent required by Section 2.11(b)
and (y) with respectto any Sale and Lease-Back Transaction pursuant to this
clause (b) with Net Proceeds in excess of $3,300,000 individually or
$16,200,000in the aggregate in any fiscal year, the requirements of the last
paragraph of Section 6.05 shall apply to such Sale and Lease-Back
Transactionto the extent provided therein.
147
Section 6.04
Investments, Loans and Advances
. (i) Purchaseor acquire (including pursuant to any merger with a person that
is not a Wholly Owned Subsidiary immediately prior to such merger) anyEquity
Interests, evidences of Indebtedness or other securities of any other person,
(ii) make any loans or advances to or Guaranteesof the Indebtedness of any
other person (other than in respect of intercompany liabilities incurred in
connection with the cash management,tax and accounting operations of the
Borrower and the Subsidiaries incurred in the ordinary course of business), or
(iii) purchaseor otherwise acquire, in one transaction or a series of related
transactions, (x) all or substantially all of the property and assetsor
business of another person or (y) assets constituting a business unit, line of
business or division of such person (each of theforegoing, an "
Investment
"), except:
(a)
the ADT Transactions;
(b)
(i) Investments by the Borrower or any Subsidiary in the Equity Interests of
the Borrower or any Subsidiary; (ii) intercompanyloans from the Borrower or
any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the
Borrower or any Subsidiaryof Indebtedness otherwise permitted hereunder of the
Borrower or any Subsidiary;
provided
, that as at any date of determination,the aggregate outstanding amount
(valued at the time of the making thereof and without giving effect to any
write-downs or write-offsthereof) of (A) Investments made after the Closing
Date by the Loan Parties pursuant to subclause (i) in Subsidiaries thatare not
Subsidiary Loan Parties,
plus
(B) net outstanding intercompany loans made after the Closing Date by the Loan
Partiesto Subsidiaries that are not Subsidiary Loan Parties pursuant to
subclause (ii),
plus
(C) outstanding Guarantees by theLoan Parties of Indebtedness after the
Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to
subclause (iii) (excludingfor purposes of the calculation in this proviso any
Investment made at a time when, immediately after giving effect thereto, the
Net TotalLeverage Ratio on a Pro Forma Basis would not exceed 3.15 to 1.00,
which Investment shall be permitted under this Section 6.04(b) withoutregard
to such calculation), shall not exceed the sum of (X) the greater of (1)
$150,000,000 and (2) 0.05 times the EBITDAcalculated on a Pro Forma Basis for
the then most recently ended Test Period
plus
(Y) an amount equal to any returns (includingdividends, interest,
distributions, returns of principal, profits on sale, repayments, income and
similar amounts) actually received inrespect of any such Investment;
(c)
Permitted Investments and Investments that were Permitted Investments when made;
(d)
Investments arising out of the receipt by the Borrower or any Subsidiary of
non-cash consideration for the Disposition of assetspermitted under Section
6.05;
(e)
loans and advances to officers, directors, employees or consultants of the
Borrower or any Subsidiary (i) in the ordinarycourse of business in an
aggregate outstanding amount (valued at the time of the making thereof, and
without giving effect to any write-downsor write-offs thereof) not to exceed
the greater of $27,500,000 and 1.20% of Consolidated Total Assets as of the
end of the then mostrecently ended Test Period, (ii) in respect of payroll
payments and expenses in the ordinary course of business and (iii)
inconnection with such person's purchase of Equity Interests of Holdings (or
any Parent Entity) solely to the extent that the amountof such loans and
advances shall be contributed to the Borrower in cash as common equity;
(f)
accounts receivable, security deposits and prepayments arising and trade
credit granted in the ordinary course of business andany assets or securities
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extentreasonably necessary in order to prevent
or limit loss and any prepayments and other credits to suppliers made in the
ordinary courseof business;
148
(g)
Hedging Agreements entered into for non-speculative purposes;
(h)
Investments existing on, or contractually committed as of, the Closing Date
and set forth on Schedule 6.04 and any extensions,renewals, replacements or
reinvestments thereof, so long as the aggregate amount of all Investments
pursuant to this clause (h) isnot increased at any time above the amount of
such Investment existing or committed on the Closing Date (other than pursuant
to an increaseas required by the terms of any such Investment as in existence
on the Closing Date or as otherwise permitted by this Section 6.04);
(i)
Investments resulting from pledges and deposits under Sections 6.02(f), (g),
(o), (r), (s), (ee) and (ll);
(j)
other Investments by the Borrower or any Subsidiary in an aggregate
outstanding amount (valued at the time of the making thereof,and without
giving effect to any write-downs or write-offs thereof) not to exceed the sum
of (X) the greater of $350,000,000 and 0.12times the EBITDA calculated on a
Pro Forma Basis for the then most recently ended Test Period, plus (Y) so long
as no Default or Eventof Default has occurred and is continuing, any portion
of the Cumulative Credit on the date of such election that the Borrower
electsto apply to this Section 6.04(j)(Y) which such election shall (unless
such Investment is made pursuant to clause (a) of the definitionof "Cumulative
Credit") be set forth in a written notice of a Responsible Officer thereof,
which notice shall set forth calculationsin reasonable detail the amount of
Cumulative Credit immediately prior to such election and the amount thereof
elected to be so applied,and
plus
(Z) an amount equal to any returns (including dividends, interest,
distributions, returns of principal, profits onsale, repayments, income and
similar amounts) actually received in respect of any such Investment pursuant
to clause (X);
provided
,that if any Investment pursuant to this Section 6.04(j) is made in any person
that was not a Subsidiary on the date on which suchInvestment was made but
becomes a Subsidiary thereafter, then such Investment may, at the option of
the Borrower, upon such person becominga Subsidiary and so long as such person
remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b)
(to the extentpermitted by the proviso thereto in the case of any Subsidiary
that is not a Loan Party) and not in reliance on this Section 6.04(j);
(k)
Investments constituting Permitted Business Acquisitions;
(l)
intercompany loans between Subsidiaries that are not Loan Parties and
Guarantees by Subsidiaries that are not Loan Parties permittedby Section
6.01(m);
(m)
Investments received in connection with the bankruptcy or reorganization of,
or settlement of delinquent accounts and disputeswith or judgments against,
customers and suppliers, in each case in the ordinary course of business or
Investments acquired by the Borroweror a Subsidiary as a result of a
foreclosure by the Borrower or any of the Subsidiaries with respect to any
secured Investments or othertransfer of title with respect to any secured
Investment in default;
(n)
Investments of a Subsidiary acquired after the Closing Date or of a person
merged into the Borrower or merged into or consolidatedwith a Subsidiary after
the Closing Date, in each case, (i) to the extent such acquisition, merger or
consolidation is permittedunder this Section 6.04, (ii) in the case of any
acquisition, merger or consolidation, in accordance with Section 6.05and (iii)
to the extent that such Investments were not made in contemplation of or in
connection with such acquisition, merger orconsolidation and were in existence
on the date of such acquisition, merger or consolidation;
(o)
acquisitions by the Borrower of obligations of one or more officers or other
employees of Holdings, any Parent Entity, the Borroweror its Subsidiaries in
connection with such
149
officer's or employee'sacquisition of Equity Interests of Holdings or any
Parent Entity, so long as no cash is actually advanced by the Borrower or any
of theSubsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(p)
Guarantees by the Borrower or any Subsidiary of operating leases (other than
Capitalized Lease Obligations) or of other obligationsthat do not constitute
Indebtedness, in each case entered into by the Borrower or any Subsidiary in
the ordinary course of business;
(q)
Investments to the extent that payment for such Investments is made with
Equity Interests of the Borrower, Holdings or any ParentEntity;
provided
, that the issuance of such Equity Interests are not included in any
determination of the Cumulative Credit;
(r)
Investments in the Equity Interests of one or more newly formed persons that
are received in consideration of the contributionby Holdings, the Borrower or
the applicable Subsidiary of assets (including Equity Interests and cash) to
such person or persons;
provided
,that (i) the fair market value of such assets, determined in good faith by
the Borrower, so contributed pursuant to this clause (r)shall not in the
aggregate exceed $13,500,000 and (ii) in respect of each such contribution, a
Responsible Officer of the Borrowershall certify, in a form to be agreed upon
by the Borrower and the Administrative Agent (x) immediately after giving
effect to suchcontribution, no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (y) the fair marketvalue (as
determined in good faith by the Borrower) of the assets so contributed and (z)
that the requirements of clause (i) ofthis proviso remain satisfied;
(s)
Investments consisting of Restricted Payments permitted under Section 6.06;
(t)
Investments in the ordinary course of business consisting of Uniform
Commercial Code Article 3 endorsements for collectionor deposit and Uniform
Commercial Code Article 4 customary trade arrangements with customers;
(u)
[reserved];
(v)
Guarantees permitted under Section 6.01 (except to the extent such Guarantee
is expressly subject to this Section 6.04);
(w)
advances in the form of a prepayment of expenses, so long as such expenses are
being paid in accordance with customary trade termsof the Borrower or such
Subsidiary;
(x)
Investments by the Borrower and its Subsidiaries, including loans to any
direct or indirect parent of the Borrower, if the Borroweror any other
Subsidiary would otherwise be permitted to make a Restricted Payment in such
amount (
provided
, that the amount ofany such Investment shall also be deemed to be a
Restricted Payment under the appropriate clause of Section 6.06 for all
purposesof this Agreement);
(y)
Investments consisting of Securitization Assets or arising as a result of
Permitted Securitization Financings;
(z)
Investments consisting of the licensing or contribution of Intellectual
Property pursuant to joint marketing or other arrangementswith other persons;
(aa)
to the extent constituting Investments, purchases and acquisitions of
inventory, supplies, materials and equipment or purchasesof contract rights or
licenses or leases of Intellectual Property in each case in the ordinary
course of business;
150
(bb)
Investments received substantially contemporaneously in exchange for Equity
Interests of the Borrower, Holdings or any ParentEntity;
provided
, that the issuance of such Equity Interests are not included in any
determination of the Cumulative Credit;
(cc)
Investments in joint ventures;
provided
that the aggregate outstanding amount (valued at the time of the making
thereofand without giving effect to any write-downs or write-offs thereof) of
Investments made after the Closing Date pursuant to this Section6.04(cc)
(excluding for purposes of the calculation in this proviso any Investment made
at a time when, immediately after giving effectthereto, the Net Total Leverage
Ratio on a Pro Forma Basis would not exceed 3.15 to 1.00, which Investment
shall be permitted under thisSection 6.04(cc) without regard to such
calculation) shall not exceed the sum of (X) the greater of $150,000,000 and
0.05 times theEBITDA calculated on a Pro Forma Basis for the then most
recently ended Test Period,
plus
(Y) an aggregate amount equal toany returns (including dividends, interest,
distributions, returns of principal, profits on sale, repayments, income and
similar amounts)actually received in respect of any such Investment;
provided
, that if any Investment pursuant to this Section 6.04(cc) ismade in any
person that was not a Subsidiary on the date on which such Investment was made
but becomes a Subsidiary thereafter, then suchInvestment may, at the option of
the Borrower, upon such person becoming a Subsidiary and so long as such
person remains a Subsidiary,be deemed to have been made pursuant to Section
6.04(b) (to the extent permitted by the proviso thereto in the case of any
Subsidiarythat is not a Loan Party) and not in reliance on this Section
6.04(cc);
(dd)
Investments in Similar Businesses in an aggregate outstanding amount (valued
at the time of the making thereof, and without givingeffect to any write downs
or write offs thereof) not to exceed the sum of (X) the greater of
$150,000,000 and 0.05 times the EBITDAcalculated on a Pro Forma Basis for the
then most recently ended Test Period
plus
(Y) an amount equal to any returns (includingdividends, interest,
distributions, returns of principal, profits on sale, repayments, income and
similar amounts) actually received inrespect of any such Investment;
provided
, that if any Investment pursuant to this Section 6.04(dd) is made in any
person thatwas not a Subsidiary on the date on which such Investment was made
but becomes a Subsidiary thereafter, then such Investment may, at theoption of
the Borrower, upon such person becoming a Subsidiary and so long as such
person remains a Subsidiary, be deemed to have beenmade pursuant to Section
6.04(b) (to the extent permitted by the proviso thereto in the case of any
Subsidiary that is not a LoanParty) and not in reliance on this Section
6.04(dd);
(ee)
Investments in any Unrestricted Subsidiaries after giving effect to the
applicable Investments, in an aggregate outstanding amount(valued at the time
of the making thereof, and without giving effect to any write downs or write
offs thereof) not to exceed the sum of(X) the greater of $75,000,000 and 0.025
times the EBITDA calculated on a Pro Forma Basis for the then most recently
ended Test Period
plus
(Y) an amount equal to any returns (including dividends, interest,
distributions, returns of principal, profits on sale, repayments,income and
similar amounts) actually received in respect of any such Investment;
provided
, that if any Investment pursuant to thisSection 6.04(ee) is made in any
person that was not a Subsidiary on the date on which such Investment was made
but becomes a Subsidiarythereafter, then such Investment may, at the option of
the Borrower, upon such person becoming a Subsidiary and so long as such
personremains a Subsidiary, be deemed to have been made pursuant to Section
6.04(b) (to the extent permitted by the proviso thereto inthe case of any
Subsidiary that is not a Loan Party) and not in reliance on this Section
6.04(ee); and
(ff)
Investments made pursuant to the Merger Agreement.
The amount of Investmentsthat may be made at any time pursuant to Section
6.04(b), 6.04(j) or 6.04(dd) (such Sections, the "
Related Sections
")may, at the election of the Borrower, be
151
increased by the amount of Investments thatcould be made at such time under
the other Related Section;
provided
, that the amount of each such increase in respect of one RelatedSection shall
be treated as having been used under the other Related Section.
Any Investment in any personother than the Borrower or a Subsidiary Loan Party
that is otherwise permitted by this Section 6.04 may be made through
intermediateInvestments in Subsidiaries that are not Loan Parties and such
intermediate Investments shall be disregarded for purposes of determiningthe
outstanding amount of Investments pursuant to any clause set forth above. The
amount of any Investment made other than in the formof cash or cash
equivalents shall be the fair market value thereof (as determined by the
Borrower in good faith) valued at the time ofthe making thereof, and without
giving effect to any subsequent write-downs or write-offs thereof.
For purposes of determiningcompliance with this covenant, (A) an Investment
(or any portion thereof) need not be permitted solely by reference to one
category ofpermitted Investments (or any portion thereof) described in the
above clauses but may be permitted in part under any combination thereofand
(B) in the event that an Investment (or any portion thereof) meets the
criteria of one or more of the categories of permitted Investments(or any
portion thereof) described in the above clauses, the Borrower may, in its sole
discretion, divide, classify or reclassify, orlater divide, classify or
reclassify, such permitted Investment (or any portion thereof) in any manner
that complies with this covenantand at the time of division, classification or
reclassification will be entitled to only include the amount and type of such
Investment(or any portion thereof) in one of the categories of permitted
Investments (or any portion thereof) described in the above clauses.
Section 6.05
Mergers, Consolidations, Sales of Assets and Acquisitions
. Merge into or consolidate with any other person, or permit anyother person
to merge into or consolidate with it, or Dispose of (in one transaction or in
a series of related transactions) all or anypart of its assets (whether now
owned or hereafter acquired), or Dispose of any Equity Interests of any
Subsidiary, or purchase, leaseor otherwise acquire (in one transaction or a
series of related transactions) all of the assets of any other person or
division or lineof business of a person, except that this Section 6.05 shall
not prohibit:
(a)
(i) the purchase and Disposition of inventory, or the sale of receivables
pursuant to non-recourse factoring arrangements,in each case in the ordinary
course of business by the Borrower or any Subsidiary, (ii) the acquisition or
lease (pursuant to anoperating lease) of any other asset in the ordinary
course of business by the Borrower or any Subsidiary or, with respect to
operatingleases, otherwise for fair market value on market terms (as
determined in good faith by the Borrower), (iii) the Disposition of
surplus,obsolete, damaged or worn out equipment or other property in the
ordinary course of business by the Borrower or any Subsidiary, (iv)
assignmentsby the Borrower and any Subsidiary in connection with insurance
arrangements of their rights and remedies under, and with respect to,the
Merger Agreement in respect of any breach by the Target of its representations
and warranties set forth therein or (v) the Dispositionof Permitted
Investments in the ordinary course of business;
(b)
if at the time thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing orwould result therefrom, (i)
the merger or consolidation of any Subsidiary with or into the Borrower in a
transaction in which theBorrower is the survivor, (ii) the merger or
consolidation of any Subsidiary with or into any Subsidiary Loan Party in a
transactionin which the surviving or resulting entity is or becomes a
Subsidiary Loan Party and, in the case of each of clauses (i) and(ii), no
person other than the Borrower or a Subsidiary Loan Party receives any
consideration (unless otherwise permitted by Section 6.04),(iii) the merger or
consolidation of any Subsidiary that is not a Subsidiary Loan Party with or
into any other Subsidiary that isnot a Subsidiary Loan Party, (iv) the
liquidation or dissolution or change in form of entity of any
152
Subsidiary if the Borrower determinesin good faith that such liquidation,
dissolution or change in form is in the best interests of the Borrower and is
not materially disadvantageousto the Lenders, (v) any Subsidiary may merge or
consolidate with any other person in order to effect an Investment permitted
pursuantto Section 6.04 so long as the continuing or surviving person shall be
a Subsidiary (unless otherwise permitted by Section 6.04),which shall be a
Loan Party if the merging or consolidating Subsidiary was a Loan Party and
which together with each of its Subsidiariesshall have complied with any
applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or
consolidate with anyother person in order to effect an Asset Sale otherwise
permitted pursuant to this Section 6.05;
(c)
Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or
otherwise);
provided
, that any Dispositionsby a Loan Party to a Subsidiary that is not a
Subsidiary Loan Party in reliance on this clause (c) shall be made in
compliance withSection 6.04;
(d)
Sale and Lease-Back Transactions permitted by Section 6.03;
(e)
(i) Investments permitted by Section 6.04, Permitted Liens and Restricted
Payments permitted by Section 6.06 and(ii) any Disposition made pursuant to
the Merger Agreement;
(f)
Dispositions of defaulted receivables in the ordinary course of business and
not as part of an accounts receivables financing transaction;
(g)
other Dispositions of assets;
provided
, that the Net Proceeds thereof, if any, are applied in accordance with
Section 2.11(b)to the extent required thereby;
(h)
Permitted Business Acquisitions (including any merger, consolidation or
amalgamation in order to effect a Permitted Business Acquisition);
provided
, that following any such merger, consolidation or amalgamation involving the
Borrower, the Borrower is the surviving entityor the requirements of Section
6.05(n) are otherwise complied with;
(i)
leases, licenses or subleases or sublicenses of any real or personal property
in the ordinary course of business;
(j)
Dispositions of inventory or Dispositions or abandonment of Intellectual
Property of the Borrower and its Subsidiaries determinedin good faith by the
management of the Borrower to be no longer useful or necessary in the
operation of the business of the Borrower orany of the Subsidiaries;
(k)
acquisitions and purchases made with the proceeds of any Asset Sale pursuant
to the first proviso of clause (a) of the definitionof "Net Proceeds";
(l)
the purchase and Disposition (including by capital contribution) of
Securitization Assets including pursuant to Permitted SecuritizationFinancings;
(m)
any exchange of assets for services and/or other assets used or useful in a
Similar Business of comparable or greater value;
provided
,that (i) at least 90% of the consideration received by the transferor
consists of assets that will be used in a business or businessactivity
permitted hereunder, (ii) in the event of a swap with a fair market value (as
determined in good faith by the Borrower)in excess of $12,000,000, the
Administrative Agent shall have received a certificate from a Responsible
Officer of the Borrower with respectto such fair market value and (iii) in the
event of a swap with a fair market value (as determined in good faith by the
Borrower)in excess of $18,000,000, such exchange shall have been approved by
at least a majority of the Board of Directors of Holdings or the Borrower;
provided
,
further
, that (A) no Default or Event of Default exists or would result
153
therefrom, (B) the Net Proceeds,if any, thereof are applied in accordance with
Section 2.11(b) to the extent required thereby and (C) with respect to any
exchangeof assets for services, immediately after giving effect thereto, the
Borrower shall be in Pro Forma Compliance;
(n)
if at the time thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing orwould result therefrom, any
Subsidiary or any other person may be merged, amalgamated or consolidated with
or into the Borrower,
provided
that (A) the Borrower shall be the surviving entity or (B) if the surviving
entity is not the Borrower (such other person, the "
SuccessorBorrower
"), (1) the Successor Borrower shall be an entity organized or existing under
the laws of the United States, any statethereof, the District of Columbia or
any territory thereof, (2) the Successor Borrower shall expressly assume all
the obligations of theBorrower under this Agreement and the other Loan
Documents pursuant to a supplement hereto or thereto in form reasonably
satisfactoryto the Administrative Agent, (3) each Guarantor, unless it is the
other party to such merger or consolidation, shall have by a supplementto the
Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement,
as applicable, confirmed that its guarantee thereundershall apply to any
Successor Borrower's obligations under this Agreement, (4) each Subsidiary
Loan Party, unless it is the otherparty to such merger or consolidation, shall
have by a supplement to any applicable Security Document affirmed that its
obligations thereundershall apply to its guarantee as reaffirmed pursuant to
clause (3)
, (5) each mortgagor of a Mortgaged Property, unless it is theother party to
such merger or consolidation, shall have affirmed that its obligations under
the applicable Mortgage shall apply to itsguarantee as reaffirmed pursuant to
clause (3)
and (6) the Successor Borrower shall have delivered to the Administrative
Agent(x) an officer's certificate stating that such merger or consolidation
does not violate this Agreement or any other Loan Documentand (y) if requested
by the Administrative Agent, an opinion of counsel to the effect that such
merger or consolidation does not violatethis Agreement or any other Loan
Document and covering such other matters as are contemplated by the Collateral
and Guarantee Requirementto be covered in opinions of counsel (it being
understood that if the foregoing are satisfied, the Successor Borrower will
succeed to,and be substituted for, the Borrower under this Agreement); and
(o)
any Disposition to effect the formation of any Subsidiary that is a Delaware
Divided LLC or Delaware Divided LP and would otherwisenot be prohibited
hereunder; provided that any disposition or other allocation of any assets
(including any equity interests of such DelawareDivided LLC or Delaware
Divided LP) in connection therewith is otherwise permitted hereunder.
Notwithstanding anythingto the contrary contained in Section 6.05 above, no
Disposition of assets under Section 6.05(g) or, solely with respect to Saleand
Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under
Section 6.05(d), shall be permitted unless (i) suchDisposition is for fair
market value (as determined in good faith by the Borrower), or if not for fair
market value, the shortfall ispermitted as an Investment under Section 6.04,
and (ii) at least 75% of the proceeds of such Disposition (except to Loan
Parties)consist of cash or Permitted Investments;
provided
, that the provisions of this clause (ii) shall not apply to any individualtrans
action or series of related transactions involving assets with a fair market
value (as determined in good faith by the Borrower)of less than $20,000,000 or
to other transactions involving assets with a fair market value (as determined
in good faith by the Borrower)of not more than the greater of $250,000,000 and
0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently
ended TestPeriod in the aggregate for all such transactions during the term of
this Agreement;
provided
,
further
, that for purposesof this clause (ii), each of the following shall be deemed
to be cash: (a) the amount of any liabilities (as shown on the Borrower'sor
such Subsidiary's most recent balance sheet or in the notes thereto) that are
assumed by the transferee of any such assets orare otherwise cancelled in
connection with such transaction, (b) any notes or other obligations or other
securities or assets receivedby the Borrower or such Subsidiary from the
transferee that are converted by the Borrower or such Subsidiary into cash
within 180 daysafter receipt thereof (to the extent of the cash received) and
(c) any Designated
154
Non-Cash Consideration received by the Borroweror any of its Subsidiaries in
such Disposition having an aggregate fair market value (as determined in good
faith by the Borrower), takentogether with all other Designated Non-Cash
Consideration received pursuant to this clause (c) that is at that time
outstanding,not to exceed the greater of $150,000,000 and 0.05 times the
EBITDA calculated on a Pro Forma Basis for the Test Period ended immediatelyprio
r to the receipt of such Designated Non-Cash Consideration (with the fair
market value of each item of Designated Non-Cash Considerationbeing measured
at the time received and without giving effect to subsequent changes in value).
Section 6.06
Dividends and Distributions
. Declare or pay any dividend or make any other distribution (by reduction of
capital or otherwise),whether in cash, property, securities or a combination
thereof, with respect to any of its Equity Interests (other than dividends
anddistributions on Equity Interests payable solely by the issuance of
additional Equity Interests (other than Disqualified Stock) of theperson
paying such dividends or distributions) or directly or indirectly redeem,
purchase, retire or otherwise acquire for value (or permitany Subsidiary to
purchase or acquire) any of the Borrower's Equity Interests or set aside any
amount for any such purpose (otherthan through the issuance of additional
Equity Interests (other than Disqualified Stock) of the person redeeming,
purchasing, retiringor acquiring such shares) (all of the foregoing, "
Restricted Payments
");
provided
,
however
, that:
(a)
Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary
of the Borrower (or, in the case of non-Wholly OwnedSubsidiaries, to the
Borrower or any Subsidiary that is a direct or indirect parent of such
Subsidiary and to each other owner of EquityInterests of such Subsidiary on a
pro rata basis (or more favorable basis from the perspective of the Borrower
or such Subsidiary) basedon their relative ownership interests);
(b)
Restricted Payments may be made in respect of (i) overhead, legal, accounting
and other professional fees and expenses ofHoldings or any Parent Entity, (ii)
fees and expenses related to any public offering or private placement of
Equity Interests ordebt securities of Holdings or any Parent Entity whether or
not consummated, (iii) franchise and similar taxes and other fees andexpenses
in connection with the maintenance of its (or any Parent Entity's) existence
and its (or any Parent Entity's indirect)ownership of the Borrower, (iv)
payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v)
in respectof any taxable period for which the Borrower and/or any of its
Subsidiaries are members of a consolidated, combined, affiliated, unitaryor
similar tax group for U.S. federal and/or applicable state, local or foreign
tax purposes of which a direct or indirect parent of theBorrower is the common
parent, or for which the Borrower is a disregarded entity for U.S. federal
income tax purposes that is wholly owned(directly or indirectly) by a C
corporation for U.S. federal and/or applicable state or local income tax
purposes, distributions to anydirect or indirect parent of the Borrower in an
amount not to exceed the amount of any U.S. federal, state, local or foreign
taxes thatthe Borrower and/or its Subsidiaries, as applicable, would have paid
for such taxable period had the Borrower and/or its Subsidiaries,as
applicable, been a stand-alone corporate taxpayer or a stand-alone corporate
group, and (vi) customary salary, bonus and otherbenefits payable to, and
indemnities provided on behalf of, officers, directors and employees of
Holdings or any Parent Entity, in eachcase in order to permit Holdings or any
Parent Entity to make such payments;
provided
, that in the case of subclauses (i) and(iii), the amount of such Restricted
Payments shall not exceed the portion of any amounts referred to in such
subclauses (i) and(iii) that are allocable to the Borrower and its
Subsidiaries (which shall be 100% at any time that, as the case may be, (x)
Holdingsowns no material assets other than the Equity Interests of the
Borrower and assets incidental to such equity ownership or (y) anyParent
Entity owns directly or indirectly no material assets other than Equity
Interests of Holdings and any other Parent Entity and assetsincidental to such
equity ownership);
(c)
Restricted Payments may be made to Holdings, the proceeds of which are used to
purchase or redeem the Equity Interests of Holdingsor any Parent Entity
(including related stock
155
appreciation rights or similar securities)held by then present or former
directors, consultants, officers or employees of any Parent Entity, Holdings,
the Borrower or any of theSubsidiaries or by any Plan or any shareholders'
agreement then in effect upon such person's death, disability, retirementor
termination of employment or under the terms of any such Plan or any other
agreement under which such shares of stock or related rightswere issued;
provided
, that the aggregate amount of such purchases or redemptions under this clause
(c) shall not exceed inany fiscal year $48,000,000 (
plus
(x) the amount of net proceeds contributed to the Borrower that were (x)
received byHoldings or any Parent Entity during such calendar year from sales
of Equity Interests of Holdings or any Parent Entity to directors,consultants,
officers or employees of Holdings, any Parent Entity, the Borrower or any
Subsidiary in connection with permitted employeecompensation and incentive
arrangements;
provided
, that such proceeds are not included in any determination of the Cumulative
Credit,(y) the amount of net proceeds of any key-man life insurance policies
received during such calendar year, and (z) the amountof any cash bonuses
otherwise payable to members of management, directors or consultants of
Holdings, any Parent Entity, the Borroweror the Subsidiaries in connection
with the ADT Transactions that are foregone in return for the receipt of
Equity Interests), which, ifnot used in any year, may be carried forward to
any subsequent calendar year; and
provided
,
further
, that cancellation ofIndebtedness owing to the Borrower or any Subsidiary
from members of management of Holdings, any Parent Entity, the Borrower or its
Subsidiariesin connection with a repurchase of Equity Interests of Holdings or
any Parent Entity will not be deemed to constitute a Restricted Paymentfor
purposes of this Section 6.06;
(d)
any person may make non-cash repurchases of Equity Interests deemed to occur
upon exercise of stock options if such Equity Interestsrepresent a portion of
the exercise price of such options;
(e)
so long as (i) no Default or Event of Default has occurred and is continuing
and (ii) after giving effect to such RestrictedPayment, the Net Total Leverage
Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted
Payments may be made in an aggregateamount equal to a portion of the
Cumulative Credit on the date of such election that the Borrower elects to
apply to this Section 6.06(e),which such election shall (unless such
Restricted Payment is made pursuant to clause (a) of the definition of
"Cumulative Credit")be set forth in a written notice of a Responsible Officer
of the Borrower, which notice shall set forth calculations in reasonable
detailthe amount of Cumulative Credit immediately prior to such election and
the amount thereof elected to be so applied;
(f)
Restricted Payments may be made in connection with the consummation of the ADT
Transactions;
(g)
Restricted Payments may be made to pay, or to allow Holdings or any Parent
Entity to make payments, in cash, in lieu of the issuanceof fractional shares,
upon the exercise of warrants or upon the conversion or exchange of Equity
Interests of any such person;
(h)
Restricted Payments may be made on or after the Ninth Incremental Assumption
and Amendment Agreement Effective Date to pay, orto allow Holding or any
Parent Entity to pay, dividends and make distributions to, or repurchase or
redeem shares from, its equity holdersin an amount not to exceed $100,000,000
for the period from the Ninth Incremental Assumption and Amendment Agreement
Effective Date toDecember 31, 2019 and $400,000,000 per fiscal year for each
subsequent fiscal year (commencing with the fiscal year ending December
31,2020) (it being understood that any Restricted Payments made prior to the
Ninth Incremental Assumption and Amendment Agreement EffectiveDate pursuant to
this Section 6.06(h) shall not use capacity hereunder);
(i)
Restricted Payments may be made to Holdings or any Parent Entity to finance
any Investment that if made by the Borrower or anySubsidiary directly would be
permitted to be made
156
pursuant to Section 6.04;
provided
,that (A) such Restricted Payment shall be made substantially concurrently
with the closing of such Investment and (B) such parentshall, immediately
following the closing thereof, cause (1) all property acquired (whether assets
or Equity Interests) to be contributedto the Borrower or a Subsidiary or (2)
the merger, consolidation or amalgamation (to the extent permitted in Section
6.05) ofthe person formed or acquired into the Borrower or a Subsidiary in
order to consummate such Permitted Business Acquisition or Investment,in each
case, in accordance with the requirements of Section 5.10;
(j)
other Restricted Payments, combined with payments and distributions under
Section 6.09(b)(i)(G), may be made on or after theNinth Incremental Assumption
and Amendment Agreement Effective Date in an aggregate amount not to exceed
the greater of $415,000,000 and0.15 times the EBITDA calculated on a Pro Forma
Basis for the Test Period ended immediately prior to the date of such
Restricted Payment(it being understood that any Restricted Payments made prior
to the Ninth Incremental Assumption and Amendment Agreement Effective
Datepursuant to this Section 6.06(j) shall not use capacity hereunder);
provided
, that no Event of Default shall have occurred andbe continuing;
(k)
[reserved];
(l)
Restricted Payments may be made with Excluded Contributions;
(m)
other Restricted Payments so long as, immediately after giving effect to such
payment or distribution on a Pro Forma Basis, theNet Total Leverage Ratio is
not greater than 2.90 to 1.00;
provided
, that no Event of Default shall have occurred and be continuing;
(n)
Restricted Payments constituting the Special Dividend; and
(o)
Restricted Payments may be made on or after the Ninth Incremental Assumption
and Amendment Agreement Effective Date in an aggregateamount not to exceed
$600,000,000.
Notwithstanding anythingherein to the contrary, the foregoing provisions of
Section 6.06 will not prohibit the payment of any Restricted Payment or the
consummationof any redemption, purchase, defeasance or other payment within 60
days after the date of declaration thereof or the giving of notice,as
applicable, if at the date of declaration or the giving of such notice such
payment would have complied with the provisions of thisAgreement.
For purposes of determiningcompliance with this covenant, (A) a Restricted
Payment (or portion thereof) need not be permitted solely by reference to one
categoryof permitted Restricted Payments (or any portion thereof) described in
the above clauses but may be permitted in part under any combinationthereof
and (B) in the event that a Restricted Payment (or any portion thereof) meets
the criteria of one or more of the categories ofpermitted Restricted Payments
(or any portion thereof) described in the above clauses, the Borrower may, in
its sole discretion, divide,classify or reclassify, or later divide, classify
or reclassify, such permitted Restricted Payment (or any portion thereof) in
any mannerthat complies with this covenant and at the time of division,
classification or reclassification will be entitled to only include theamount
and type of such Restricted Payment (or any portion thereof) in one of the
categories of permitted Restricted Payments (or anyportion thereof) described
in the above clauses. In the event that a Restricted Payment (or any portion
thereof) is divided, classifiedor reclassified under Section 6.06(m) (such
clause, the "
Restricted Payments Incurrence Clause
"), the determinationof the amount of such Restricted Payment (or any portion
thereof) that may be made pursuant to the Restricted Payments Incurrence
Clauseshall be made without giving pro forma effect to any substantially
concurrent Restricted Payment (or any portion thereof) divided, classifiedor
reclassified under any of the above clauses other
157
than the Restricted Payments Incurrence Clauseor the incurrence of
Indebtedness to finance any such Restricted Payment (or any portion thereof).
Section 6.07
Transactions with Affiliates
. (a) Sell or transfer any propertyor assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other transaction with,
any of its Affiliates(other than the Borrower, Holdings, and the Subsidiaries
or any person that becomes a Subsidiary as a result of such transaction) in
atransaction (or series of related transactions) involving aggregate
consideration in excess of $33,000,000, unless such transaction is(i)
otherwise permitted (or required) under this Agreement or (ii) upon terms that
are substantially no less favorable to theBorrower or such Subsidiary, as
applicable, than would be obtained in a comparable arm's-length transaction
with a person that isnot an Affiliate, as determined by the Board of Directors
of the Borrower or such Subsidiary in good faith.
(b)
The foregoing clause (a) shall not prohibit, to the extent otherwise permitted
under this Agreement,
(i)
any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of,employment
arrangements, equity purchase agreements, stock options and stock ownership
plans approved by the Board of Directors of Holdingsor of the Borrower,
(ii)
loans or advances to employees or consultants of Holdings (or any Parent
Entity), the Borrower or any of the Subsidiaries in accordancewith Section
6.04(e),
(iii)
transactions among the Borrower or any Subsidiary or any entity that becomes a
Subsidiary as a result of such transaction (includingvia merger, consolidation
or amalgamation in which the Borrower or a Subsidiary is the surviving entity),
(iv)
the payment of fees, reasonable out-of-pocket costs and indemnities to
directors, officers, consultants and employees of Holdings,any Parent Entity,
the Borrower and the Subsidiaries in the ordinary course of business (limited,
in the case of any Parent Entity, tothe portion of such fees and expenses that
are allocable to the Borrower and its Subsidiaries (which (x) shall be 100%
for so longas Holdings or such Parent Entity, as the case may be, owns no
assets other than the Equity Interests of the Borrower, Holdings or anyParent
Entity and assets incidental to the ownership of the Borrower and its
Subsidiaries and (y) in all other cases shall be asdetermined in good faith by
management of the Borrower)),
(v)
subject to the limitations set forth in Section 6.07(b)(xiv), if applicable,
the ADT Transactions and any transactions pursuantto the Transaction Documents
and permitted transactions, agreements and arrangements in existence on the
Closing Date and, to the extentinvolving aggregate consideration in excess of
$7,000,000, set forth on Schedule 6.07 or any amendment thereto or replacement
thereofor similar arrangement to the extent such amendment, replacement or
arrangement is not adverse to the Lenders when taken as a whole inany material
respect (as determined by the Borrower in good faith),
(vi)
(A) any employment agreements entered into by the Borrower or any of the
Subsidiaries in the ordinary course of business, (B) anysubscription agreement
or similar agreement pertaining to the repurchase of Equity Interests pursuant
to put/call rights or similar rightswith employees, officers or directors, and
(C) any employee compensation, benefit plan or arrangement, any health,
disability orsimilar insurance plan which covers employees, and any reasonable
employment contract and transactions pursuant thereto,
158
(vii)
Restricted Payments permitted under Section 6.06, including payments to
Holdings (and any Parent Entity), and Investmentspermitted under Section 6.04,
(viii)
any purchase by Holdings of the Equity Interests of the Borrower;
provided
, that any Equity Interests of the Borrower purchasedby Holdings (prior to a
Qualified IPO of the Borrower) shall be pledged to the Collateral Agent (and
deliver the relevant certificatesor other instruments (if any) representing
such Equity Interests to the Collateral Agent) on behalf of the Lenders to the
extent requiredby the Collateral Agreement,
(ix)
payments by the Borrower or any of the Subsidiaries to the Fund or any Fund
Affiliate made for any financial advisory, financing,underwriting or placement
services or in respect of other investment banking activities, including in
connection with acquisitions ordivestitures, which payments are approved by
the majority of the Board of Directors of the Borrower in good faith,
(x)
transactions for the purchase or sale of goods, equipment, products, parts and
services entered into in the ordinary course ofbusiness,
(xi)
any transaction in respect of which the Borrower delivers to the Administrative
Agent a letter addressed to the Board of Directorsof the Borrower from an
accounting, appraisal or investment banking firm, in each case of nationally
recognized standing that is in thegood faith determination of the Borrower
qualified to render such letter, which letter states that (i) such transaction
is on termsthat are substantially no less favorable to the Borrower or such
Subsidiary, as applicable, than would be obtained in a comparable
arm's-lengthtransaction with a person that is not an Affiliate or (ii) such
transaction is fair to the Borrower or such Subsidiary, as applicable,from a
financial point of view,
(xii)
subject to subclause (xiv) below, if applicable, the payment of all fees,
expenses, bonuses and awards related to theADT Transactions, including fees to
the Fund or any Fund Affiliate,
(xiii)
transactions with joint ventures for the purchase or sale of goods, equipment,
products, parts and services entered into in theordinary course of business,
(xiv)
any agreement to pay, and the payment of, monitoring, consulting, management,
transaction, advisory or similar fees payable tothe Fund or any Fund Affiliate
(A) in an aggregate amount in any fiscal year not to exceed the sum of (1) the
greater of $25,000,000and 1% of EBITDA for any such fiscal year,
plus
reasonable out of pocket costs and expenses in connection therewith in any
fiscalyear and unpaid amounts for any prior periods from and including the
fiscal year in which the Closing Date occurs;
plus
(2) anydeferred, accrued or other fees in respect of any fiscal years from and
including the fiscal year in which the Closing Date occurs (tothe extent such
fees in the aggregate do not exceed the amounts described in clause (A)(1)
above in respect of such fiscal years),
plus
(B) 1% of the value of transactions (including, for the avoidance of doubt,
the ADT Transactions) with respect to whichthe Fund or any Fund Affiliate
provides any transaction, advisory or other services,
plus
(C) so long as no Event of Defaulthas occurred and is continuing, the present
value of all future amounts payable pursuant to any agreement referred to in
clause (A)(1)above in connection with the termination of such agreement with
the Fund and its Fund Affiliates;
provided
, that if any such paymentpursuant to clause (C) is not permitted to be paid
as a result of an Event of Default, such payment shall accrue and may be
payablewhen no Events of Default are continuing to the extent that no further
Event of Default would result therefrom,
159
(xv)
the issuance, sale or transfer of Equity Interests of the Borrower or any
Subsidiary to Holdings (or any Parent Entity) and capitalcontributions by
Holdings (or any Parent Entity) to the Borrower or any Subsidiary,
(xvi)
the issuance of Equity Interests to the management of Holdings, any Parent
Entity, the Borrower or any Subsidiary in connectionwith the ADT Transactions,
(xvii)
payments by Holdings (and any Parent Entity), the Borrower and the
Subsidiaries pursuant to a tax sharing agreement or arrangement(whether
written or as a matter of practice) that complies with clause (v) of Section
6.06(b),
(xviii)
transactions pursuant to any Permitted Securitization Financing,
(xix)
payments, loans (or cancellation of loans) or advances to employees or
consultants that are (i) approved by a majority ofthe Disinterested Directors
of Holdings or the Borrower in good faith, (ii) made in compliance with
applicable law and (iii) otherwisepermitted under this Agreement,
(xx)
transactions with customers, clients or suppliers, or purchasers or sellers of
goods or services, in each case in the ordinarycourse of business or otherwise
in compliance with the terms of this Agreement that are fair to the Borrower
or the Subsidiaries,
(xxi)
transactions between the Borrower or any of the Subsidiaries and any person, a
director of which is also a director of the Borroweror any direct or indirect
parent company of the Borrower;
provided
,
however
, that (A) such director abstains from votingas a director of the Borrower or
such direct or indirect parent company, as the case may be, on any matter
involving such other personand (B) such person is not an Affiliate of the
Borrower for any reason other than such director's acting in such capacity,
(xxii)
transactions permitted by, and complying with, the provisions of Section 6.05,
(xxiii)
intercompany transactions undertaken in good faith (as certified by a
Responsible Officer of the Borrower) for the purpose of improvingthe
consolidated tax efficiency of the Borrower and the Subsidiaries and not for
the purpose of circumventing any covenant set forth herein,and
(xxiv)
Investments by the Fund or a Fund Affiliate in securities of the Borrower or
any of the Subsidiaries so long as (A) the Investmentis being offered
generally to other investors on the same or more favorable terms and (B) the
Investment constitutes less than 5%of the outstanding issue amount of such
class of securities.
Notwithstanding the foregoing,any portfolio company that is an Affiliate of
the Fund or a Fund Affiliate shall not be considered an Affiliate of the
Borrower or itsSubsidiaries with respect to any transaction, so long as such
transaction is in the ordinary course of business.
Section 6.08
Business of the Borrower and the Subsidiaries
. Notwithstanding any other provisions hereof, engage at any time to any
materialrespect in any business or business activity substantially different
from any business or business activity conducted by any of themon the Closing
Date or any Similar Business, and in the case of a Special Purpose
Securitization Subsidiary, Permitted SecuritizationFinancings.
160
Section 6.09
Limitationon Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other Agreements;etc.
(a) Amend or modify in any manner materially adverse to the Lenders when taken
as a whole (as determined in good faith bythe Borrower), or grant any waiver
or release under or terminate in any manner (if such granting or termination
shall be materiallyadverse to the Lenders when taken as a whole (as determined
in good faith by the Borrower)), the articles or certificate ofincorporation,
by-laws, limited liability company operating agreement, partnership agreement
or other organizational documents ofthe Borrower or any of the Subsidiary Loan
Parties.
(b)
(i) Make, directly or indirectly, any payment or other distribution (whether
in cash, securities or other property) of, orin respect of, principal of or
interest on any Junior Financing, or any payment or other distribution
(whether in cash, securities orother property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellationor termination in respect of any Junior Financing,
except for:
(A)
Refinancings with any Indebtedness permitted to be incurred under Section 6.01;
(B)
payments of regularly-scheduled interest and fees due thereunder, other
non-principal payments thereunder, any mandatory prepaymentsof principal,
interest and fees thereunder, scheduled payments thereon necessary to avoid
the Junior Financing from constituting "applicablehigh yield discount
obligations" within the meaning of Section 163(i)(l) of the Code, and, to the
extent this Agreement isthen in effect, principal on the scheduled maturity
date of any Junior Financing (or within twelve months thereof);
(C)
payments or distributions in respect of all or any portion of the Junior
Financing with the proceeds contributed to the Borrowerby Holdings from the
issuance, sale or exchange by Holdings (or any Parent Entity) of Equity
Interests that are not Disqualified Stockmade within eighteen months prior
thereto;
provided
, that such proceeds are not included in any determination of the
CumulativeCredit;
(D)
the conversion of any Junior Financing to Equity Interests of the Borrower,
Holdings or any Parent Entity;
(E)
so long as (1) no Event of Default has occurred and is continuing and (2)
after giving effect to such payments or distributions,the Net Total Leverage
Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, payments or
distributions in respect of Junior Financingsprior to any scheduled maturity
made, in an aggregate amount, not to exceed a portion of the Cumulative Credit
on the date of such electionthat the Borrower elects to apply to this Section
6.09(b)(i)(E), which such election shall (unless such payment or distribution
ismade pursuant to clause (a) of the definition of "Cumulative Credit") be set
forth in a written notice of a Responsible Officerthereof, which notice shall
set forth calculations in reasonable detail of the amount of Cumulative Credit
immediately prior to such electionand the amount thereof elected to be so
applied;
(F)
other payments and distributions in an aggregate amount (valued at the time of
the making thereof and without giving effect toany write-downs or write-offs
thereof) not to exceed the greater of $350,000,000 and 0.12 times the EBITDA
calculated on a Pro Forma Basisfor the then most recently ended Test Period;
provided
, that no Event of Default shall have occurred and be continuing;
161
(G)
other payments and distributions, combined with payments and distributions
under Section 6.06(j), may be made on or afterthe Ninth Incremental Assumption
and Amendment Agreement Effective Date in an aggregate amount not to exceed
the greater of $415,000,000and 0.15 times the EBITDA calculated on a Pro Forma
Basis for the Test Period ended immediately prior to the date of such payments
anddistributions (it being understood that any payments or distributions made
prior to the Ninth Incremental Assumption and Amendment AgreementEffective
Date pursuant to this Section 6.09(b)(i)(G) shall not use capacity hereunder);
provided
, that no Event of Default shallhave occurred and be continuing; and
(H)
other payments and distributions so long as, immediately after giving effect
to such payment or distribution on a Pro Forma Basis,the Net Total Leverage
Ratio is not greater than 2.90 to 1.00;
provided
, that no Event of Default shall have occurred and be continuing;or
(ii)
Amend or modify, or permit the amendment or modification of, any provision of
any Junior Financing that constitutes Material Indebtedness,or any agreement,
document or instrument evidencing or relating thereto, other than amendments
or modifications that (A) are notmaterially adverse to Lenders when taken as a
whole (as determined in good faith by the Borrower) and that do not affect the
subordinationor payment provisions thereof (if any) in a manner adverse to the
Lenders when taken as a whole (as determined in good faith by the Borrower)or
(B) otherwise comply with the definition of "Permitted Refinancing
Indebtedness."
(c)
Permit any Material Subsidiary to enter into any agreement or instrument that
by its terms restricts (i) the payment of dividendsor distributions or the
making of cash advances to the Borrower or any Subsidiary that is a direct or
indirect parent of such Subsidiaryor (ii) the granting of Liens by the
Borrower or such Material Subsidiary that is a Loan Party pursuant to the
Security Documents,in each case other than those arising under any Loan
Document, except, in each case, restrictions existing by reason of:
(A)
restrictions imposed by applicable law;
(B)
contractual encumbrances or restrictions in effect on the Closing Date under
Indebtedness existing on the Closing Date and setforth on Schedule 6.01, the
Second Lien Loan Documents, the Second Priority Senior Secured Notes
Documents, any Refinancing Notesor any agreements related to any Permitted
Refinancing Indebtedness in respect of any such Indebtedness that does not
materially expandthe scope of any such encumbrance or restriction (as
determined in good faith by the Borrower);
(C)
any restriction on a Subsidiary imposed pursuant to an agreement entered into
for the sale or disposition of the Equity Interestsor assets of a Subsidiary
pending the closing of such sale or disposition;
(D)
customary provisions in joint venture agreements and other similar agreements
applicable to joint ventures entered into in theordinary course of business;
(E)
any restrictions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement to the extent that suchrestrictions apply only to
the property or assets securing such Indebtedness;
(F)
any restrictions imposed by any agreement relating to Indebtedness incurred
pursuant to Section 6.01 or Permitted RefinancingIndebtedness in respect
thereof, to the extent such restrictions are not materially more restrictive,
taken as a whole, than the restrictionscontained in this
162
Agreement or are market terms at the time ofissuance (in each case as
determined in good faith by the Borrower);
(G)
customary provisions contained in leases or licenses of Intellectual Property
and other similar agreements entered into in theordinary course of business;
(H)
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest;
(I)
customary provisions restricting assignment of any agreement entered into in
the ordinary course of business;
(J)
customary restrictions and conditions contained in any agreement relating to
the sale, transfer, lease or other disposition ofany asset permitted under
Section 6.05 pending the consummation of such sale, transfer, lease or other
disposition;
(K)
customary restrictions and conditions contained in the document relating to
any Lien, so long as (1) such Lien is a PermittedLien and such restrictions or
conditions relate only to the specific asset subject to such Lien, and (2)
such restrictions and conditionsare not created for the purpose of avoiding
the restrictions imposed by this Section 6.09;
(L)
customary net worth provisions contained in Real Property leases entered into
by Subsidiaries, so long as the Borrower has determinedin good faith that such
net worth provisions would not reasonably be expected to impair the ability of
the Borrower and its Subsidiariesto meet their ongoing obligations;
(M)
any agreement in effect at the time such subsidiary becomes a Subsidiary, so
long as such agreement was not entered into in contemplationof such person
becoming a Subsidiary;
(N)
restrictions in agreements representing Indebtedness permitted under Section
6.01 of a Subsidiary of the Borrower that isnot a Subsidiary Loan Party;
(O)
customary restrictions contained in leases, subleases, licenses or Equity
Interests or asset sale agreements otherwise permittedhereby as long as such
restrictions relate to the Equity Interests and assets subject thereto;
(P)
restrictions on cash or other deposits imposed by customers under contracts
entered into in the ordinary course of business;
(Q)
restrictions contained in any Permitted Securitization Document with respect
to any Special Purpose Securitization Subsidiary;and
(R)
any encumbrances or restrictions of the type referred to in Section 6.09(c)(i)
and 6.09(c)(ii) above imposed byany amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
or similararrangements to the contracts, instruments or obligations referred
to in clauses (A) through (Q) above;
provided
, that such amendments,modifications, restatements, renewals, increases,
supplements, refundings, replacements, refinancings or similar arrangements
are, inthe good faith judgment of the Borrower, no more restrictive with
respect to such dividend and other payment restrictions than thosecontained in
the dividend or other payment restrictions as contemplated by such provisions
prior to such amendment, modification, restatement,renewal, increase,
supplement, refunding, replacement, refinancing or similar arrangement.
163
Section 6.10
Fiscal Year
. In the case of the Borrower,permit any change to its fiscal year without
prior notice to the Administrative Agent, in which case, the Borrower and the
AdministrativeAgent will, and are hereby authorized by the Lenders to, make
any adjustments to this Agreement that are necessary to reflect such changein
fiscal year.
Section 6.11
Financial Covenant
. With respect to the Revolving Facilities only, permit the Net First Lien
Leverage Ratio as of the lastday of any fiscal quarter, solely to the extent
that on such date the Testing Condition is satisfied, to exceed 4.90 to 1.00.
ARTICLEVIA
Holdings Negative Covenants
Holdings (prior to a QualifiedIPO) hereby covenants and agrees with each
Lender that, from and after the Closing Date and until the Termination Date,
unless the RequiredLenders shall otherwise consent in writing, (a) Holdings
will not create, incur, assume or permit to exist any Lien other than (i)
Lienscreated under the Loan Documents and (ii) Liens not prohibited by Section
6.02 on any of the Equity Interests issued by theBorrower held by Holdings and
(b) Holdings shall do or cause to be done all things necessary to preserve,
renew and keep in fullforce and effect its legal existence;
provided
, that so long as no Default has occurred and is continuing or would result
therefrom,Holdings may merge with any other person (and if it is not the
survivor of such merger, the survivor shall assume Holdings' obligations,as
applicable, under the Loan Documents).
Article VII
Eventsof Default
Section 7.01
Events of Default
. In case of the happening of any of the following events (each, an "
Event of Default
"):
(a)
any representation or warranty made or deemed made by the Borrower or any
Subsidiary Loan Party herein or in any other Loan Documentor any certificate
or document delivered pursuant hereto or thereto shall prove to have been
false or misleading in any material respectwhen so made or deemed made and
such false or misleading representation or warranty (if curable) shall remain
false or misleading fora period of 30 days after notice thereof from the
Administrative Agent to the Borrower;
provided
, that the failure of any representationor warranty made or deemed made by any
Loan Party (other than the representations and warranties referred to in
Section 5(n) of the FirstIncremental Assumption and Amendment Agreement) to be
true and correct in any material respect on the Closing Date will not
constitutean Event of Default hereunder;
(b)
default shall be made in the payment of any principal of any Loan when and as
the same shall become due and payable, whether atthe due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c)
default shall be made in the payment of any interest on any Loan or the
reimbursement with respect to any L/C Disbursement or inthe payment of any Fee
or any other amount (other than an amount referred to in clause (b) above) due
under any Loan Document, whenand as the same shall become due and payable, and
such default shall continue unremedied for a period of five Business Days;
(d)
default shall be made in the due observance or performance by the Borrower of
any covenant, condition or agreement contained in,Section 5.01(a), 5.05(a) or
5.08 or in Article VI;
164
provided
, that the failure toobserve or perform the Financial Covenant shall not in
and of itself constitute an Event of Default with respect to any Term Facility;
(e)
default shall be made in the due observance or performance by Holdings (prior
to a Qualified IPO) of Article VIA or by the Borroweror any of the Subsidiary
Loan Parties of any covenant, condition or agreement contained in any Loan
Document (other than those specifiedin clauses (b), (c) and (d) above) and
such default shall continue unremedied for a period of 30 days (or 60 days if
suchdefault results solely from the failure of a Subsidiary that is not a Loan
Party to duly observe or perform any such covenant, conditionor agreement)
after notice thereof from the Administrative Agent to the Borrower;
(f)
(i) any event or condition occurs that (A) results in any Material
Indebtedness becoming due prior to its scheduled maturityor (B) enables or
permits (with all applicable grace periods having expired) the holder or
holders of any Material Indebtedness orany trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase,redemption or defeasance thereof, prior to its
scheduled maturity;
provided
, that any breach of the Financial Covenant giving riseto an event described
in clause (B) above shall not, by itself, constitute an Event of Default under
any Term Facility unless theRevolving Facility Lenders have terminated the
Revolving Facility Commitment and have accelerated any Revolving Facility
Loans then outstandingas a result of such breach; or (ii) the Borrower or any
of the Subsidiaries shall fail to pay the principal of any Material
Indebtednessat the stated final maturity thereof;
provided
, that this clause (f) shall not apply to any secured Indebtedness that
becomesdue as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness if such sale or transfer is permittedhereunder
and under the documents providing for such Indebtedness;
(g)
there shall have occurred a Change in Control;
(h)
an involuntary proceeding shall be commenced or an involuntary petition shall
be filed in a court of competent jurisdiction seeking(i) relief in respect of
the Borrower or any of the Material Subsidiaries, or of a substantial part of
the property or assets ofthe Borrower or any Material Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
otherfederal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian,sequestrator,
conservator or similar official for the Borrower or any of the Material
Subsidiaries or for a substantial part of the propertyor assets of the
Borrower or any of the Material Subsidiaries or (iii) the winding-up or
liquidation of the Borrower or any MaterialSubsidiary (except in a transaction
permitted hereunder); and such proceeding or petition shall continue
undismissed for 60 days or anorder or decree approving or ordering any of the
foregoing shall be entered;
(i)
the Borrower or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking reliefunder Title 11 of the United
States Code, as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy,insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner,any proceeding or the filing of any petition described in clause (h)
above, (iii) apply for or consent to the appointment ofa receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or
any of the Material Subsidiaries orfor a substantial part of the property or
assets of the Borrower or any Material Subsidiary, (iv) file an answer
admitting the materialallegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or(vi)
become unable or admit in writing its inability or fail generally to pay its
debts as they become due;
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(j)
the failure by the Borrower or any Material Subsidiary to pay one or more
final judgments aggregating in excess of $84,000,000(to the extent not covered
by insurance), which judgments are not discharged or effectively waived or
stayed for a period of 45 consecutivedays, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of the Borrower
or any Material Subsidiaryto enforce any such judgment;
(k)
(i) an ERISA Event shall have occurred, (ii) the PBGC shall institute
proceedings (including giving notice of intentthereof) to terminate any Plan
or Plans, (iii) the Borrower or any Subsidiary or any ERISA Affiliate shall
have been notified bythe sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of TitleIV of ERISA, or (iv) the Borrower or any Subsidiary shall
engage in any "prohibited transaction" (as defined in Section 406of ERISA or
Section 4975 of the Code) involving any Plan; and in each case in clauses (i)
through (iv) above, such eventor condition, together with all other such
events or conditions, if any, would reasonably be expected to have a Material
Adverse Effect;or
(l)
(i) any Loan Document shall for any reason be asserted in writing by Holdings
(prior to a Qualified IPO of the Borrower),the Borrower or any Subsidiary Loan
Party not to be a legal, valid and binding obligation of any party thereto,
(ii) any securityinterest purported to be created by any Security Document and
to extend to assets that constitute a material portion of the Collateralshall
cease to be, or shall be asserted in writing by the Borrower or any other Loan
Party not to be, a valid and perfected security interest(perfected as or
having the priority required by this Agreement or the relevant Security
Document and subject to such limitations andrestrictions as are set forth
herein and therein) in the securities, assets or properties covered thereby,
except to the extent that anysuch loss of perfection or priority results from
the limitations of foreign laws, rules and regulations as they apply to
pledges of EquityInterests of Foreign Subsidiaries or the application thereof,
or from the failure of the Collateral Agent to maintain possession of
certificatesactually delivered to it representing securities pledged under the
Collateral Agreement or to file Uniform Commercial Code continuationstatements
or take the actions described on Schedule 3.04 and except to the extent that
such loss is covered by a lender'stitle insurance policy and the Collateral
Agent shall be reasonably satisfied with the credit of such insurer, or (iii)
a materialportion of the Guarantees pursuant to the Security Documents by
Holdings (prior to a Qualified IPO of the Borrower) or the SubsidiaryLoan
Parties guaranteeing the Obligations shall cease to be in full force and
effect (other than in accordance with the terms thereof),or shall be asserted
in writing by Holdings (prior to a Qualified IPO of the Borrower) or any
Subsidiary Loan Party not to be in effector not to be legal, valid and binding
obligations (other than in accordance with the terms thereof);
provided
, that no Event ofDefault shall occur under this Section 7.01(l) if the Loan
Parties cooperate with the Collateral Agent to replace or perfect suchsecurity
interest and Lien, such security interest and Lien is replaced and the rights,
powers and privileges of the Secured Parties arenot materially adversely
affected by such replacement;
then, and in every such event (other than anevent with respect to the Borrower
described in clause (h) or (i) above), and at any time thereafter during the
continuanceof such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all ofthe
following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans thenoutstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared
to be due and payable,together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and
underany other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind,all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstandingand (iii) if the Loans have
been declared due and payable pursuant to clause (ii) above, demand Cash
Collateral pursuant toSection 2.05(j); and in any event with respect to the
Borrower described in clause (h) or (i) above, the Commitmentsshall
automatically terminate
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and the principal of the Loans then outstanding,together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower
accrued hereunder and underany other Loan Document, shall automatically become
due and payable and the Administrative Agent shall be deemed to have made a
demandfor Cash Collateral to the full extent permitted under Section 2.05(j),
without presentment, demand, protest or any other noticeof any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein
or in any other Loan Document to thecontrary notwithstanding.
For purposes of clauses (h) and (i) ofthis Section 7.01, "Material Subsidiary"
shall mean any Subsidiary that would not be an Immaterial Subsidiary under
clause(a) of the definition thereof.
Section 7.02
Treatment of Certain Payments
. Subject to the terms of any applicable Intercreditor Agreement, any amount
received by theAdministrative Agent or the Collateral Agent from any Loan
Party (or from proceeds of any Collateral) following any acceleration of
theObligations under this Agreement or any Event of Default with respect to
the Borrower under Section 7.01(h) or (i), in each casethat is continuing,
shall be applied: (i) first, ratably, to pay any fees, indemnities or expense
reimbursements then due to theAdministrative Agent or the Collateral Agent
from the Borrower (other than in connection with any Secured Cash Management
Agreement orSecured Hedge Agreement), (ii) second, towards payment of interest
and fees then due from the Borrower hereunder, ratably among theparties
entitled thereto in accordance with the amounts of interest and fees then due
to such parties, (iii) third, towards paymentof principal of Swingline Loans
and unreimbursed L/C Disbursements then due from the Borrower hereunder,
ratably among the parties entitledthereto in accordance with the amounts of
principal and unreimbursed L/C Disbursements then due to such parties, (iv)
fourth, towardspayment of other Obligations (including Obligations of the Loan
Parties owing under or in respect of any Secured Cash Management Agreementor
Secured Hedge Agreement) then due from the Borrower hereunder, ratably among
the parties entitled thereto in accordance with the amountsof such Obligations
then due to such parties and (v) last, the balance, if any, after all of the
Obligations have been paid in full,to the Borrower or as otherwise required by
Requirements of Law.
Section 7.03
Right to Cure
. Notwithstanding anything to the contrary contained in Section 7.01, in the
event that the Borrower fails(or, but for the operation of this Section 7.03,
would fail) to comply with the requirements of the Financial Covenant, from
thelast day of the applicable fiscal quarter until the expiration of the 10
th
Business Day subsequent to the date the certificatecalculating such Financial
Covenant is required to be delivered pursuant to Section 5.04(c), Holdings,
the Borrower and any ParentEntity shall have the right to issue Permitted Cure
Securities for cash or otherwise receive cash contributions to the capital of
suchentities, and in each case, to contribute any such cash to the capital of
the Borrower (collectively, the "
Cure Right
"),and upon the receipt by the Borrower of such cash (the "
Cure Amount
"), pursuant to the exercise of the Cure Right,the Financial Covenant shall be
recalculated giving effect to a pro forma adjustment by which EBITDA shall be
increased with respect tosuch applicable quarter and any four-quarter period
that contains such quarter, solely for the purpose of measuring the Financial
Covenantand not for any other purpose under this Agreement, by an amount equal
to the Cure Amount;
provided
, that (i) in each four consecutivefiscal quarter period there shall be at
least two fiscal quarters in which a Cure Right is not exercised, (ii) a Cure
Right shall notbe exercised more than five times during the term of the
Revolving Facilities, (iii) for purposes of this Section 7.03, the Cure
Amountshall be no greater than the amount required for purposes of complying
with the Financial Covenant and (iv) there shall be no pro formareduction in
Indebtedness with the proceeds of the exercise of the Cure Right for
determining compliance with the Financial Covenant forthe fiscal quarter in
respect of which such Cure Right is exercised (either directly through
prepayment or indirectly as a result of thenetting of Unrestricted Cash)
(other than, for future periods, with respect to any portion of such Cure
Amount that is used to repay TermLoans or to prepay Revolving Facility Loans
to the extent accompanied by permanent reductions in Revolving Facility
Commitments). If,after giving effect to the adjustments in this Section 7.03,
the Borrower shall then be in compliance with the requirements of the
FinancialCovenant, the Borrower shall
167
be deemed to have satisfied the requirementsof the Financial Covenant as of
the relevant date of determination with the same effect as though there had
been no failure to complytherewith at such date, and the applicable breach or
default of the Financial Covenant that had occurred shall be deemed cured for
thepurposes of this Agreement.
Article VIII
The Agents
Section 8.01
Appointment
. (a) Each Lender (in its capacities as a Lender andthe Swingline Lender (if
applicable) and on behalf of itself and its Affiliates as potential
counterparties to Secured Cash ManagementAgreements and Secured Hedge
Agreements), each Issuing Bank (in such capacities and on behalf of itself and
its Affiliates as potentialcounterparties to Secured Cash Management
Agreements and Secured Hedge Agreements) and, to the extent a Lender is unable
to act on behalfof its Affiliates, each other Secured Party (for all purposes
of this Article VIII and Article IX, by virtue of its acceptance of
thebenefits of the Loan Documents) hereby irrevocably designates and appoints
the Administrative Agent as the agent of such Lender underthis Agreement and
the other Loan Documents, including as the Collateral Agent for such Lender
and the other Secured Parties under theSecurity Documents, and each such
Lender irrevocably authorizes the Administrative Agent, in such capacity, to
take such action on itsbehalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as
areexpressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such otherpowers as are
reasonably incidental thereto. In addition, to the extent required under the
laws of any jurisdiction other than the UnitedStates of America, each of the
Lenders and the Issuing Banks hereby grants to the Administrative Agent any
required powers of attorneyto execute any Security Document governed by the
laws of such jurisdiction on such Lender's or Issuing Bank's behalf.
Notwithstandingany provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities,
exceptthose expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities,duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the AdministrativeAgent.
(b)
In furtherance of the foregoing, each Lender (in its capacities as a Lender
and the Swingline Lender (if applicable) and on behalfof itself and its
Affiliates as potential counterparties to Secured Cash Management Agreements
or Secured Hedge Agreements), each IssuingBank (in such capacities and on
behalf of itself and its Affiliates as potential counterparties to Secured
Cash Management Agreementsand Secured Hedge Agreements) and, to the extent a
Lender is unable to act on behalf of its Affiliates, each other Secured Party
herebyappoints and authorizes the Collateral Agent to act as the agent of such
Lender for purposes of acquiring, holding and enforcing any andall Liens on
Collateral granted by any of the Loan Parties to secure any of the
Obligations, together with such powers and discretionas are reasonably
incidental thereto. In this connection, the Collateral Agent (and any
Subagents appointed by the Collateral Agent pursuantto Section 8.02 for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the SecurityDocuments, or for exercising any rights or
remedies thereunder at the direction of the Collateral Agent) shall be
entitled to the benefitsof this Article VIII (including, without limitation,
Section 8.07) as though the Collateral Agent (and any such Subagents) werean
"Agent" under the Loan Documents, as if set forth in full herein with respect
thereto.
Section 8.02
Delegation of Duties
. The Administrative Agent and the Collateral Agent may execute any of their
respective duties underthis Agreement and the other Loan Documents (including
for purposes of holding or enforcing any Lien on the Collateral (or any
portionthereof) by or through agents, employees or attorneys-in-fact) and
shall be entitled to advice of counsel and other consultants or
168
experts concerning all matters pertaining tosuch duties. No Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonablecare. Each Agent may also from time to time,
when it deems it to be necessary or desirable, appoint one or more trustees,
co-trustees,collateral co-agents, collateral subagents or attorneys-in-fact
(each, a "
Subagent
") with respect to all or any partof the Collateral;
provided
, that no such Subagent shall be authorized to take any action with respect to
any Collateral unlessand except to the extent expressly authorized in writing
by the Administrative Agent or the Collateral Agent. Should any instrument
inwriting from the Borrower or any other Loan Party be required by any
Subagent so appointed by an Agent to more fully or certainly vestin and
confirm to such Subagent such rights, powers, privileges and duties, the
Borrower shall, or shall cause such Loan Party to, execute,acknowledge and
deliver any and all such instruments promptly upon request by such Agent. If
any Subagent, or successor thereto, shallbecome incapable of acting, resign or
be removed, all rights, powers, privileges and duties of such Subagent, to the
extent permittedby law, shall automatically vest in and be exercised by the
Administrative Agent or the Collateral Agent until the appointment of a
newSubagent. No Agent shall be responsible for the negligence or misconduct of
any agent, attorney-in-fact or Subagent that it selects withreasonable care.
Section 8.03
Exculpatory Provisions
. None of the Agents, or their respective Affiliates or any of their
respective officers, directors,employees, agents, attorneys-in-fact or
affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by itor such person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoingare found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such person'sown gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements,representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document
orin any certificate, report, statement or other document referred to or
provided for in, or received by any Agent under or in connectionwith, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiencyof this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunderor thereunder. No Agent shall be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance
ofany of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, booksor records of any Loan
Party. No Agent shall have any duties or obligations except those expressly
set forth herein and in the otherLoan Documents. Without limiting the
generality of the foregoing, (a) no Agent shall be subject to any fiduciary or
other impliedduties, regardless of whether a Default or Event of Default has
occurred and is continuing, and (b) no Agent shall, except as expresslyset
forth herein and in the other Loan Documents, have any duty to disclose, and
shall be liable for the failure to disclose, any informationrelating to the
Borrower or any of its Affiliates that is communicated to or obtained by such
Agent or any of its Affiliates in any capacity.The Agents shall be deemed not
to have knowledge of any Default or Event of Default unless and until written
notice describing such Defaultor Event of Default is given to the
Administrative Agent by the Borrower, a Lender or an Issuing Bank. No Agent
shall be responsiblefor or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with
thisAgreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunderor in
connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms orconditions set forth herein or
therein or the occurrence of any Default or Event of Default, (iv) the
validity, enforceability,effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document, or the
creation,perfection or priority of any Lien purported to be created by the
Security Documents, (v) the value or the sufficiency of any Collateral,or (vi)
the satisfaction of any condition set forth in Article IV or elsewhere herein,
other than to confirm receipt of itemsexpressly required to be delivered to
the Administrative Agent.
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Section 8.04
Reliance by Agents
. Each Agent shallbe entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement,
instrument,document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) or conversationbelie
ved by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper person. Each Agent also may rely uponany statement
made to it orally or by telephone and believed by it to have been made by the
proper person, and shall not incur any liabilityfor relying thereon. In
determining compliance with any condition hereunder to any Credit Event, that
by its terms must be fulfilled tothe satisfaction of a Lender or any Issuing
Bank, each Agent may presume that such condition is satisfactory to such
Lender or IssuingBank unless such Agent shall have received notice to the
contrary from such Lender or Issuing Bank prior to such Credit Event. Each
Agentmay consult with legal counsel (including counsel to Holdings or the
Borrower), independent accountants and other experts selected byit, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants orexperts. Each Agent may deem and
treat the Lender specified in the Register with respect to any amount owing
hereunder as the owner thereoffor all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with such
Agent. Each Agentshall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall
firstreceive such advice or concurrence of the Required Lenders (or, if so
specified by this Agreement, all or other Lenders) as it deems appropriateor
it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense that may be incurred byit by reason of taking or
continuing to take any such action. Each Agent shall in all cases be fully
protected in acting, or in refrainingfrom acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders (or,
if so specifiedby this Agreement, all or other Lenders), and such request and
any action taken or failure to act pursuant thereto shall be binding uponall
the Lenders and all future holders of the Loans.
Section 8.05
Notice of Default
. Neither Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event ofDefault unless such Agent has received written
notice from a Lender, Holdings or the Borrower referring to this Agreement,
describingsuch Default or Event of Default and stating that such notice is a
"notice of default." In the event that the AdministrativeAgent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take suchaction with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
if so specified bythis Agreement, all or other Lenders);
provided
, that unless and until the Administrative Agent shall have received such
directions,the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to suchDefault
or Event of Default as it shall deem advisable in the best interests of the
Lenders.
Section 8.06
Non-Reliance on Agents and Other Lenders
. Each Lender and Issuing Bank expressly acknowledges that neither the Agents
norany of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warrantiesto
it and that no act by any Agent hereafter taken, including any review of the
affairs of a Loan Party or any affiliate of a Loan Party,shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each
Lender and Issuing Bank represents to theAgents that it has, independently and
without reliance upon any Agent or any other Lender, and based on such
documents and informationas it has deemed appropriate, made its own appraisal
of, and investigation into the business, operations, property, financial and
othercondition and creditworthiness of, the Loan Parties and their affiliates
and made its own decision to make its Loans hereunder and enterinto this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender,and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisalsand decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deemsnecessary to inform itself as to the business, operations, property,
financial and
170
other condition and creditworthiness of theLoan Parties and their affiliates.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders bythe Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with anycredit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthinessof any Loan Party or any affiliate of a Loan Party that may
come into the possession of the Administrative Agent or any of its
officers,directors, employees, agents, attorneys-in-fact or affiliates.
Section 8.07
Indemnification
. The Lenders agree to indemnify each Agent and the Revolving Facility Lenders
agree to indemnify each IssuingBank and the Swingline Lender, in each case, in
its capacity as such (to the extent not reimbursed by Holdings or the Borrower
and withoutlimiting the obligation of Holdings or the Borrower to do so), in
the amount of its pro rata share (based on its aggregate Revolving
FacilityCredit Exposure and, in the case of the indemnification of each Agent,
outstanding Term Loans and unused Commitments hereunder;
provided
,that the aggregate principal amount of Swingline Loans owing to the Swingline
Lender and of L/C Disbursements owing to any Issuing Bankshall be considered
to be owed to the Revolving Facility Lenders ratably in accordance with their
respective Revolving Facility CreditExposure) (determined at the time such
indemnity is sought), from and against any and all liabilities, obligations,
losses, damages, penalties,actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before or
after the paymentof the Loans) be imposed on, incurred by or asserted against
such Agent, Issuing Bank or Swingline Lender in any way relating to or
arisingout of the Commitments, this Agreement, any of the other Loan Documents
or any documents contemplated by or referred to herein or thereinor the
transactions contemplated hereby or thereby or any action taken or omitted by
such Agent, Issuing Bank or Swingline Lender underor in connection with any of
the foregoing;
provided
, that no Lender shall be liable for the payment of any portion of such
liabilities,obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are found by a final and
nonappealabledecision of a court of competent jurisdiction to have resulted
from such Agent's, Issuing Bank's or Swingline Lender'sgross negligence or
willful misconduct. The failure of any Lender to reimburse any Agent, Issuing
Bank or Swingline Lender, as the casemay be, promptly upon demand for its
ratable share of any amount required to be paid by the Lenders to such Agent,
Issuing Bank or SwinglineLender, as the case may be, as provided herein shall
not relieve any other Lender of its obligation hereunder to reimburse such
Agent,Issuing Bank or Swingline Lender, as the case may be, for its ratable
share of such amount, but no Lender shall be responsible for thefailure of any
other Lender to reimburse such Agent, Issuing Bank or Swingline Lender, as the
case may be, for such other Lender'sratable share of such amount. The
agreements in this Section 8.07 shall survive the payment of the Loans and all
other amounts payablehereunder.
Section 8.08
Agent in Its Individual Capacity
. Each Agent and its affiliates may make loans to, accept deposits from, and
generally engagein any kind of business with any Loan Party as though such
Agent were not an Agent. With respect to its Loans made or renewed by it
andwith respect to any Letter of Credit issued, or Letter of Credit or
Swingline Loan participated in, by it, each Agent shall have the samerights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent,and the terms "Lender"
and "Lenders" shall include each Agent in its individual capacity.
Section 8.09
Successor Administrative Agent
. The Administrative Agent may resign as Administrative Agent and Collateral
Agent upon 10days' notice to the Lenders and the Borrower. If the
Administrative Agent shall resign as Administrative Agent and Collateral
Agentunder this Agreement and the other Loan Documents, then the Required
Lenders shall have the right, subject to the reasonable consent ofthe
Borrower, not to be unreasonably withheld or delayed (so long as no Event of
Default under Section 7.01(b), (c), (h) or (i) shallhave occurred and be
continuing), to appoint a successor which shall be a bank with an office in
the United States, or an Affiliate ofany such bank with an office in the United
171
States, whereupon such successor agent shallsucceed to the rights, powers and
duties of the Administrative Agent and Collateral Agent, and the term
"Administrative Agent"shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights,
powersand duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former AdministrativeAgent or
any of the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as AdministrativeAgent by the date
that is 10 days following a retiring Administrative Agent's notice of
resignation, the retiring AdministrativeAgent's resignation shall nevertheless
thereupon become effective (except in the case of the Collateral Agent holding
collateralsecurity on behalf of such Secured Parties, the retiring Collateral
Agent shall continue to hold such collateral security as nominee untilsuch
time as a successor Collateral Agent is appointed), and the Lenders shall
assume and perform all of the duties of the AdministrativeAgent and Collateral
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section
8.09 shall inureto its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement and the otherLoan
Documents.
Section 8.10
Arrangers, Syndication Agents and Documentation Agents
. Notwithstanding any other provision of this Agreement or any provisionof any
other Loan Document, each of the persons named on the cover page hereof or the
Sixteenth Amended and Restated Credit Agreement,Fourteenth Amended and
Restated Credit Agreement, Thirteenth Amended and Restated Credit Agreement,
Twelfth Amended Restated Credit Agreement,Eleventh Amended and Restated Credit
Agreement, Tenth Amended and Restated Credit Agreement, Ninth Amended and
Restated Credit Agreement,Eighth Amended and Restated Credit Agreement,
Seventh Amended and Restated Credit Agreement, Sixth Amended and Restated
Credit Agreement,Fifth Amended and Restated Credit Agreement, the Fourth
Amended and Restated Credit Agreement, the Third Amended and Restated Credit
Agreement,the Second Amended and Restated Credit Agreement, the First Amended
and Restated Credit Agreement or the Original Credit Agreement asJoint
Bookrunner, Joint Lead Arranger, Co-Manager, Syndication Agent or
Documentation Agent is named as such for recognition purposesonly, and in its
capacity as such shall have no rights, duties, responsibilities or liabilities
with respect to this Agreement or anyother Loan Document (or the Sixteenth
Amended and Restated Credit Agreement and the "Loan Documents" (as defined in
the SixteenthAmended and Restated Credit Agreement) or the Fourteenth Amended
and Restated Credit Agreement and the "Loan Documents" (asdefined in the
Fourteenth Amended and Restated Credit Agreement) or the Thirteenth Amended
and Restated Credit Agreement and the "LoanDocuments" (as defined in the
Thirteenth Amended and Restated Credit Agreement) or the Twelfth Amended and
Restated Credit Agreementand the "Loan Documents" (as defined in the Twelfth
Amended and Restated Credit Agreement) or the Eleventh Amended and
RestatedCredit Agreement and the "Loan Documents" (as defined in the Eleventh
Amended and Restated Credit Agreement) or the TenthAmended and Restated Credit
Agreement and the "Loan Documents" (as defined in the Tenth Amended and
Restated Credit Agreement)or the Ninth Amended and Restated Credit Agreement
and the "Loan Documents" (as defined in the Ninth Amended and RestatedCredit
Agreement) or the Eighth Amended and Restated Credit Agreement and the "Loan
Documents" (as defined in the Eighth Amendedand Restated Credit Agreement) or
Seventh Amended and Restated Credit Agreement and the "Loan Documents" (as
defined in theSeventh Amended and Restated Credit Agreement) or the Sixth
Amended and Restated Credit Agreement and the "Loan Documents"(as defined in
the Sixth Amended and Restated Credit Agreement) or the Fifth Amended and
Restated Credit Agreement and the "LoanDocuments" (as defined in the Fifth
Amended and Restated Credit Agreement) or the Fourth Amended and Restated
Credit Agreement andthe "Loan Documents" (as defined in the Fourth Amended and
Restated Credit Agreement) or the Third Amended and Restated CreditAgreement
and the "Loan Documents" (as defined in the Third Amended and Restated Credit
Agreement) or the Second Amended andRestated Credit Agreement and the "Loan
Documents" (as defined in the Second Amended and Restated Credit Agreement) or
theFirst Amended and Restated Credit Agreement and the "Loan Documents" (as
defined in the First Amended and Restated
172
Credit Agreement) or the Original Credit Agreementand the "Loan Documents" (as
defined in the Original Credit Agreement)), except that each such person and
its Affiliatesshall be entitled to the rights expressly stated to be
applicable to them in Section 9.05 and 9.17 (subject to the applicable
obligationsand limitations as set forth therein).
Section 8.11
Security Documents and Collateral Agent
. The Lenders and the other Secured Parties authorize the Collateral Agent to
releaseany Collateral or Guarantors in accordance with Section 9.18 or if
approved, authorized or ratified in accordance with Section 9.08.
The Lenders and the otherSecured Parties hereby irrevocably authorize and
instruct the Collateral Agent to, without any further consent of any Lender or
any otherSecured Party, enter into (or acknowledge and consent to) or amend,
renew, extend, supplement, restate, replace, waive or otherwise modifyany
First Lien/First Lien Intercreditor Agreement, the First Lien/Second Lien
Intercreditor Agreement, any other Permitted Junior IntercreditorAgreement,
any other Permitted Pari Passu Intercreditor Agreement or any other
intercreditor agreement with the collateral agent or otherrepresentatives of
the holders of Indebtedness that is to be secured by a Lien on the Collateral
that is not prohibited (including withrespect to priority) under this
Agreement and to subject the Liens on the Collateral securing the Obligations
to the provisions thereof(any of the foregoing, an "
Intercreditor Agreement
"). The Lenders and the other Secured Parties irrevocably agree that(x) the
Collateral Agent may rely exclusively on a certificate of a Responsible
Officer of the Borrower as to whether any such otherLiens are not prohibited
and (y) any Intercreditor Agreement entered into by the Collateral Agent shall
be binding on the SecuredParties, and each Lender and the other Secured
Parties hereby agrees that it will take no actions contrary to the provisions
of, if enteredinto and if applicable, any Intercreditor Agreement. The
foregoing provisions are intended as an inducement to any provider of any
Indebtednessnot prohibited by Section 6.01 hereof to extend credit to the Loan
Parties and such persons are intended third-party beneficiariesof such
provisions. Furthermore, the Lenders and the other Secured Parties hereby
authorize the Administrative Agent and the CollateralAgent to release any Lien
on any property granted to or held by the Administrative Agent or the
Collateral Agent under any Loan Document(i) to the holder of any Lien on such
property that is permitted by clauses (c)(i), (i), (j) and (aa) of Section
6.02 orSection 6.02(a) (if the Liens thereunder are of a type that is
contemplated by any of the foregoing clauses) in each case to theextent the
contract or agreement pursuant to which such Lien is granted prohibits any
other Liens on such property or (ii) that isor becomes Excluded Property; and
the Administrative Agent and the Collateral Agent shall do so upon request of
the Borrower;
provided
,that prior to any such request, the Borrower shall have in each case
delivered to the Administrative Agent a certificate of a ResponsibleOfficer of
the Borrower certifying (x) that such Lien is permitted under this Agreement,
(y) in the case of a request pursuantto clause (i) of this sentence, that the
contract or agreement pursuant to which such Lien is granted prohibits any
other Lien onsuch property and (z) in the case of a request pursuant to clause
(ii) of this sentence, that (A) such property is or hasbecome Excluded
Property and (B) if such property has become Excluded Property as a result of
a contractual restriction, such restrictiondoes not violate Section 6.09(c).
Section 8.12
Right to Realize on Collateral and Enforce Guarantees
. In case of the pendency of any receivership, insolvency, liquidation,bankruptc
y, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, (i) theAdministrative Agent
(irrespective of whether the principal of any Obligation shall then be due and
payable as herein expressed or bydeclaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitledand empowered, by intervention in such proceeding or
otherwise (A) to file and prove a claim for the whole amount of the
principaland interest owing and unpaid in respect of any or all of the
Obligations that are owing and unpaid and to file such other documents asmay
be necessary or advisable in order to have the claims of the Lenders, the
Issuing Banks and the Administrative Agent and any Subagentsallowed in such
judicial proceeding, and (B) to collect and receive any monies or other
property payable or deliverable on any suchclaims and to distribute the same,
and
173
(ii) any custodian, receiver, assignee,trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and IssuingBank to make such payments to the Administrative Agent
and, if the Administrative Agent shall consent to the making of such payments
directlyto the Lenders and the Issuing Banks, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursementsand
advances of the Administrative Agent and its agents and counsel, and any
other amounts due the Administrative Agent under the LoanDocuments. Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopton behalf of any Lender or Issuing
Bank any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations orthe rights of any Lender or Issuing Bank or to
authorize the Administrative Agent to vote in respect of the claim of any
Lender or IssuingBank in any such proceeding.
Anything contained in anyof the Loan Documents to the contrary notwithstanding,
the Borrower, the Administrative Agent, the Collateral Agent and each Secured
Party(other than the Agent) hereby agree that (a) no Secured Party (other than
the Agent) shall have any right individually to realizeupon any of the
Collateral or to enforce the Guarantee, it being understood and agreed that
all powers, rights and remedies hereundermay be exercised solely by the
Administrative Agent, on behalf of the Secured Parties in accordance with the
terms hereof and all powers,rights and remedies under the Security Documents
may be exercised solely by the Collateral Agent, and (b) in the event of a
foreclosureby the Collateral Agent on any of the Collateral pursuant to a
public or private sale or other disposition, the Collateral Agent or anyLender
may be the purchaser or licensor of any or all of such Collateral at any such
sale or other disposition and the Collateral Agent,as agent for and
representative of the Secured Parties (but not any Lender or Lenders in its or
their respective individual capacitiesunless the Required Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or paymentof the purchase price for all or any portion of
the Collateral sold at any such public sale, to use and apply any of the
Obligations asa credit on account of the purchase price for any collateral
payable by the Collateral Agent at such sale or other Disposition.
Section 8.13
Withholding Tax
. To the extent required by any applicable Requirement of Law, the
Administrative Agent may withhold fromany payment to any Lender an amount
equivalent to any applicable withholding Tax. If the Internal Revenue Service
or any authority ofthe United States or other jurisdiction asserts a claim
that the Administrative Agent did not properly withhold Tax from amounts
paidto or for the account of any Lender for any reason (including because the
appropriate form was not delivered, was not properly executed,or because such
Lender failed to notify the Administrative Agent of a change in circumstances
that rendered the exemption from, or reductionof, withholding Tax
ineffective), such Lender shall indemnify the Administrative Agent (to the
extent that the Administrative Agent hasnot already been reimbursed by any
applicable Loan Party and without limiting the obligation of any applicable
Loan Party to do so) fullyfor all amounts paid, directly or indirectly, by the
Administrative Agent as Tax or otherwise, including penalties, fines,
additions toTax and interest, together with all expenses incurred, including
legal expenses, allocated staff costs and any out of pocket expenses.Each
Lender hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender underthis Agreement or any other
Loan Document against any amount due to the Administrative Agent under this
Section 8.13.
Section 8.14
Certain ERISA Matters
. (a)Each Lender party to the Eighth Amendment Agreement (x) represents and
warrants, as of the datesuch person became a Lender party hereto, to, and (y)
covenants, from the date such person became a Lender party hereto to the date
suchperson ceases being a Lender party hereto, for the benefit of, the
Administrative Agent, the Arrangers, each other Lead Arranger
174
and their respective Affiliates, and not, forthe avoidance of doubt, to or for
the benefit of the Borrower or any other Loan Party, that at least one of the
following is and willbe true:
(i)
such Lender is not using "plan assets" (within the meaning of Section 3(42) of
ERISA or otherwise for purposes of TitleI of ERISA or Section 4975 of the
Code) of one or more Benefit Plans in connection with the Loans, the Letters
of Credit or the Commitments,
(ii)
the prohibited transaction exemption set forth in one or more PTEs, such as
PTE 84-14 (a class exemption for certain transactionsdetermined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for
certain transactions involving insurancecompany general accounts), PTE 90-1 (a
class exemption for certain transactions involving insurance company pooled
separate accounts),PTE 91-38 (a class exemption for certain transactions
involving bank collective investment funds) or PTE 96-23 (a class exemption
forcertain transactions determined by in-house asset managers), is applicable
so as to exempt from the prohibitions of Section 406 of ERISAand Section 4975
of the Code such Lender's entrance into, participation in, administration of
and performance of the Loans, theLetters of Credit, the Commitments and this
Agreement,
(iii)
(A) such Lender is an investment fund managed by a "Qualified Professional
Asset Manager" (within the meaning of PartVI of PTE 84-14), (B) such Qualified
Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participatein, administer and perform the Loans, the
Letters of Credit, the Commitments and this Agreement, (C) the entrance into,
participationin, administration of and performance of the Loans, the Letters
of Credit, the Commitments and this Agreement satisfies the requirementsof
sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best
knowledge of such Lender, the requirements of subsection (a)of Part I of PTE
84-14 are satisfied with respect to such Lender's entrance into, participation
in, administration of and performanceof the Loans, the Letters of Credit, the
Commitments and this Agreement, or
(iv)
such other representation, warranty and covenant as may be agreed in writing
between the Administrative Agent, in its sole discretion,and such Lender.
(b)
In addition, unless sub-clause (i) in the immediately preceding clause (a) is
true with respect to a Lender or such Lender hasnot provided another
representation, warranty and covenant as provided in sub-clause (iv) in the
immediately preceding clause (a), suchLender further (x) represents and
warrants, as of the date such person became a Lender party hereto, and (y)
covenants, from the datesuch person became a Lender party hereto to the date
such person ceases being a Lender party hereto, for the benefit of, the
AdministrativeAgent, the Arrangers, each other Lead Arrangers and their
respective Affiliates, and not, for the avoidance of doubt, to or for the
benefitof the Borrower or any other Loan Party, that none of the Administrative
Agent, the Arrangers, each other Lead Arranger or any of theirrespective
Affiliates is a fiduciary with respect to the assets of such Lender (including
in connection with the reservation or exerciseof any rights by the
Administrative Agent under this Agreement, any Loan Document or any documents
related to hereto or thereto).
Article IX
Miscellaneous
Section 9.01
Notices; Communications
. (a) Except as provided in Section 9.01(b),all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or
175
overnight courier service, mailed by certifiedor registered mail or sent by
telecopier or other electronic means as follows:
(i)
if to any Loan Party, the Administrative Agent, the Issuing Banks as of the
Closing Date or the Swingline Lender to the address,telecopier number, or
electronic mail address on
Schedule 9.01
; and
(ii)
if to any other Lender or any other Issuing Bank, to the address, telecopier
number or electronic mail address specified in itsAdministrative Questionnaire.
(b)
Notices and other communications to the Lenders and the Issuing Banks
hereunder may be delivered or furnished by electronic communication(including
e mail and Internet or intranet websites) pursuant to procedures approved by
the Administrative Agent;
provided
, thatthe foregoing shall not apply to notices to any Lender or Issuing Bank
pursuant to Article II if such Lender or Issuing Bank, asapplicable, has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication.The Administrative Agent or the
Borrower may, in their discretion, agree to accept notices and other
communications to it hereunder byelectronic communications pursuant to
procedures approved by them,
provided
that approval of such procedures may be limited toparticular notices or
communications.
(c)
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been givenwhen received. Notices sent
by telecopier shall be deemed to have been given when sent (except that, if
not given during normal businesshours for the recipient, shall be deemed to
have been given at the opening of business on the next Business Day for the
recipient). Noticesdelivered through electronic communications to the extent
provided in Section 9.01(b) above shall be effective as provided in
suchSection 9.01(b).
(d)
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the otherparties hereto.
(e)
Documents required to be delivered pursuant to Section 5.04 (to the extent any
such documents are included in materials otherwisefiled with the SEC) may be
delivered electronically (including as set forth in Section 9.17) and if so
delivered, shall be deemedto have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower'swebsi
te on the Internet at the website address listed on
Schedule 9.01
, or (ii) on which such documents are posted onthe Borrower's behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access(whether a commercial, third-party website or
whether sponsored by the Administrative Agent);
provided
, that (A) the Borrowershall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
papercopies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender, and (B) theBorrower shall notify
the Administrative Agent (by telecopier or electronic mail) of the posting of
any such documents and provide tothe Administrative Agent by electronic mail
electronic versions (
i.e.
, soft copies) of such documents. Except for such certificatesrequired by
Section 5.04(c), the Administrative Agent shall have no obligation to request
the delivery or to maintain copies of thedocuments referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower
with any such requestfor delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such documents.
Section 9.02
Survival of Agreement
. All covenants, agreements, representations and warranties made by the Loan
Parties herein, in theother Loan Documents and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreementor any other Loan Document shall be considered to have been relied
upon by the Lenders and each Issuing Bank and shall
176
survive the making by the Lenders of the Loansand the execution and delivery
of the Loan Documents and the issuance of the Letters of Credit, regardless of
any investigation made bysuch persons or on their behalf, and shall continue
in full force and effect until the Termination Date. Without prejudice to the
survivalof any other agreements contained herein, indemnification and
reimbursement obligations contained herein (including pursuant to Sections
2.15,2.16, 2.17 and 9.05) shall survive the Termination Date.
Section 9.03
Binding Effect
. This Agreement shall become effective when it shall have been executed by
Holdings, the Borrower and theAdministrative Agent and when the Administrative
Agent shall have received copies hereof which, when taken together, bear the
signaturesof each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of Holdings, the Borrower, the AdministrativeAgent
, each Issuing Bank and each Lender and their respective permitted successors
and assigns.
Section 9.04
Successors and Assigns
. (a) The provisions of this Agreement shallbe binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby (includingany Affiliate of an Issuing Bank that issues any
Letter of Credit), except that (i) except as permitted by Section 6.05,
theBorrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender(and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assignor otherwise transfer its rights
or obligations hereunder except in accordance with this Section 9.04. Nothing
in this Agreement,expressed or implied, shall be construed to confer upon any
person (other than the parties hereto, their respective successors and
assignspermitted hereby (including any Affiliate of an Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided inclause
(d) of this Section 9.04), and, to the extent expressly contemplated hereby,
the Related Parties of each of the Agents,the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement or the other LoanDocuments.
(b)
(i) Subject to the conditions set forth in subclause (ii) below, any Lender
may assign to one or more assignees (each,an "
Assignee
") all or a portion of its rights and obligations under this Agreement
(including all or a portion of itsCommitments and the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably
withheld or delayed)of:
(A)
the Borrower, which consent, with respect to the assignment of a Term B-1
Loan, will be deemed to have been given if the Borrowerhas not responded
within 10 Business Days after the delivery of any request for such consent;
provided
, that no consent ofthe Borrower shall be required for an assignment of a Term
B-1 Loan to a Lender, an Affiliate of a Lender, an Approved Fund (as
definedbelow), or in the case of assignments during the primary syndication of
the Commitments and Loans to persons identified to and agreedby the Borrower
in writing prior to the Closing Date, or for an assignment of a Revolving
Facility Commitment or Revolving Facility Loanto a Revolving Facility Lender,
an Affiliate of a Revolving Facility Lender or Approved Fund with respect to a
Revolving Facility Lender,or, in each case, if an Event of Default under
Section 7.01(b), (c), (h) or (i) has occurred and is continuing, any other
person;and
(B)
the Administrative Agent;
provided
, that no consent of the Administrative Agent shall be required for an
assignment of allor any portion of a Term Loan to a Lender, an Affiliate of a
Lender, an Approved Fund, the Borrower or an Affiliate of the Borrower madein
accordance with Section 9.04(i) or Section 9.21; and
(C)
the Issuing Banks and the Swingline Lender;
provided
, that no consent of the Issuing Banks and the Swingline Lender shallbe
required for an assignment of all or any portion of a Term Loan.
(ii)
Assignments shall be subject to the following additional conditions:
177
(A)
except in the case of an assignment to a Lender, an Affiliate of a Lender or
an Approved Fund or an assignment of the entire remainingamount of the
assigning Lender's Commitments or Loans under any Facility, the amount of the
Commitments or Loans of the assigningLender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is deliveredto the Administrative Agent) shall not be less than (x)
$1,000,000 or an integral multiple of $1,000,000 in excess thereof in thecase
of Term Loans and (y) $5,000,000 or an integral multiple of $1,000,000 in
excess thereof in the case of Revolving Facility Loansor Revolving Facility
Commitments, unless each of the Borrower and the Administrative Agent
otherwise consent;
provided
, that suchamounts shall be aggregated in respect of each Lender and its
Affiliates or Approved Funds (with simultaneous assignments to or by twoor
more Related Funds shall be treated as one assignment), if any;
(B)
the parties to each assignment shall (1) execute and deliver to the
Administrative Agent an Assignment and Acceptance viaan electronic settlement
system acceptable to the Administrative Agent or (2) if previously agreed with
the Administrative Agent,manually execute and deliver to the Administrative
Agent an Assignment and Acceptance, in each case together with a processing
and recordationfee of $3,500 (which fee may be waived or reduced in the
reasonable discretion of the Administrative Agent);
(C)
the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire and any taxforms required to be
delivered pursuant to Section 2.17; and
(D)
the Assignee shall not be the Borrower or any of the Borrower's Affiliates or
Subsidiaries except in accordance with Section 9.04(i) orSection 9.21.
For the purposes of thisSection 9.04, "
Approved Fund
" shall mean any person (other than a natural person) that is engaged in
making, purchasing,holding or investing in bank loans and similar extensions
of credit in the ordinary course and that is administered or managed by (a)
aLender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender. Notwithstandingthe foregoing or
anything to the contrary herein, no Lender shall be permitted to assign or
transfer any portion of its rights and obligationsunder this Agreement to (A)
any Ineligible Institution, (B) any Defaulting Lender or any of its
Subsidiaries, or any personwho, upon becoming a Lender hereunder, would
constitute any of the foregoing persons described in this clause (B), or (C)
anatural person. Notwithstanding the foregoing, each Loan Party and the
Lenders acknowledge and agree that the Administrative Agent shallnot have any
responsibility or obligation to determine whether any Lender or potential
Lender is an Ineligible Institution and the AdministrativeAgent shall have no
liability with respect to any assignment made to an Ineligible Institution.
Any assigning Lender shall, in connectionwith any potential assignment,
provide to the Borrower a copy of its request (including the name of the
prospective assignee) concurrentlywith its delivery of the same request to the
Administrative Agent irrespective of whether or not an Event of Default under
Section 7.01(b),(c), (h) or (i) has occurred and is continuing.
(iii)
Subject to acceptance and recording thereof pursuant to subclause (v) below,
from and after the effective date specified ineach Assignment and Acceptance
the Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignmentand Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extentof the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case ofan Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shallcease to be a
party hereto but shall continue to be entitled to the
178
benefits of Sections 2.15, 2.16,2.17 and 9.05 (subject to the limitations and
requirements of those Sections));
provided
, that an Assignee shall not be entitledto receive any greater payment
pursuant to Section 2.17 than the applicable Assignor would have been entitled
to receive had no suchassignment occurred. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
thisSection 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligationsin accordance
with clause (d) of this Section 9.04 (except to the extent such participation
is not permitted by such clause(d) of this Section 9.04, in which case such
assignment or transfer shall be null and void).
(iv)
The Administrative Agent, acting solely for this purpose as a non-fiduciary
agent of the Borrower, shall maintain at one of itsoffices a copy of each
Assignment and Acceptance delivered to it and a register for the recordation
of the names and addresses of theLenders, and the Commitments of, and
principal and interest amounts of the Loans and Revolving L/C Exposure owing
to, each Lender pursuantto the terms hereof from time to time (the "
Register
"). The entries in the Register shall be conclusive absent manifesterror, and
the Borrower, the Administrative Agent, the Issuing Banks, the Swingline
Lender and the Lenders shall treat each person whosename is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstandingnotice to the contrary. The Register shall
be available for inspection by the Borrower, the Issuing Banks, the Swingline
Lender and anyLender, at any reasonable time and from time to time upon
reasonable prior notice.
(v)
Upon its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an Assignee, the Assignee'scompleted Administrative
Questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referredto in clause (b) of this Section, if
applicable, and any written consent to such assignment required by clause (b)
of this Section andany applicable tax forms, the Administrative Agent shall
accept such Assignment and Acceptance and promptly record the information
containedtherein in the Register. No assignment, whether or not evidenced by a
promissory note, shall be effective for purposes of this Agreementunless it
has been recorded in the Register as provided in this subclause (v).
(c)
[Reserved].
(d)
(i) Any Lender may, without the consent of any other party hereto (including
the Borrower or the Administrative Agent), sell participationsin Loans and
Commitments to one or more banks or other entities other than (I) any
Ineligible Institution (to the extent that thelist of Ineligible Institutions
has been made available to all Lenders) or (II) any Defaulting Lender or any
of its Subsidiaries,or any person who, upon becoming a Lender hereunder, would
constitute any of the foregoing persons described in this clause (II) (a"
Participant
") in all or a portion of such Lender's rights and obligations under this
Agreement (including allor a portion of its Commitments and the Loans owing to
it);
provided
, that (A) such Lender's obligations under thisAgreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performanceof such obligations and (C) the Borrower,
the Administrative Agent, the Issuing Banks and the other Lenders shall
continue to dealsolely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreementpursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreementand the other Loan Documents
and to approve any amendment, modification or waiver of any provision of this
Agreement and the other LoanDocuments;
provided
, that (x) such agreement may provide that such Lender will not, without the
consent of the Participant,agree to any amendment, modification or waiver that
both (1) requires the consent of each Lender directly affected thereby
pursuantto clauses (i), (ii), (iii) or (vi) of the first proviso to Section
9.08(b) and (2) directly affects
179
such Participant (but, for the avoidanceof doubt, not any waiver of any
Default or Event of Default) and (y) no other agreement with respect to
amendment, modification orwaiver may exist between such Lender and such
Participant. Subject to clause (d)(iii) of this Section 9.04, the
Borroweragrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 (subject to the limitations and requirementsof
those Sections and Section 2.19) to the same extent as if it were a Lender and
had acquired its interest by assignment pursuantto clause (b) of this Section
9.04. To the extent permitted by law, each Participant also shall be entitled
to the benefitsof Section 9.06 as though it were a Lender;
provided
, that such Participant shall be subject to Section 2.18(c) as thoughit were a
Lender. Notwithstanding the foregoing, each Loan Party and the Lenders
acknowledge and agree that the Administrative Agent shallnot have any
responsibility or obligation to determine whether any Participant or potential
Participant is an Ineligible Institution andthe Administrative Agent shall
have no liability with respect to any participation made to an Ineligible
Institution.
(ii)
Each Lender that sells a participation shall, acting solely for this purpose
as a non-fiduciary agent of the Borrower, maintaina register on which it
enters the name and address of each Participant and the principal amounts and
interest amounts of each Participant'sinterest in the Loans or other
obligations under the Loan Documents (the "
Participant Register
"). The entries in theParticipant Register shall be conclusive absent manifest
error, and each party hereto shall treat each person whose name is recorded
inthe Participant Register as the owner of such participation for all purposes
of this Agreement notwithstanding any notice to the contrary.Without
limitation of the requirements of Section 9.04(d), no Lender shall have any
obligation to disclose all or any portion ofa Participant Register to any
person (including the identity of any Participant or any information relating
to a Participant's interestin any Commitments, Loans or other Loan Obligations
under any Loan Document), except to the extent that such disclosure is
necessary toestablish that such Commitment, Loan or other Loan Obligation is
in registered form for U.S. federal income tax purposes or is otherwiserequired
by applicable law. For the avoidance of doubt, the Administrative Agent (in
its capacity as Administrative Agent) shall haveno responsibility for
maintaining a Participant Register.
(iii)
A Participant shall not be entitled to receive any greater payment under
Section 2.15, 2.16 or 2.17 than the applicable Lenderwould have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation tosuch Participant is made with the Borrower's
prior written consent, which consent shall state that it is being given
pursuant tothis Section 9.04(d)(iii);
provided
, that each potential Participant shall provide such information as is
reasonably requestedby the Borrower in order for the Borrower to determine
whether to provide its consent.
(e)
Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secureobligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank or other central bank havingjurisdiction over it and in the case
of any Lender that is an Approved Fund, any pledge or assignment to any
holders of obligations owed,or securities issued, by such Lender, including to
any trustee for, or any other representative of, such holders, and this
Section 9.04shall not apply to any such pledge or assignment of a security
interest;
provided
, that no such pledge or assignment of a securityinterest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
Assignee for such Lender as aparty hereto.
(f)
The Borrower and the Co-Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lenderrequiring Notes to
facilitate transactions of the type described in clause (e) above.
180
(g)
Notwithstanding the foregoing, any Conduit Lender may assign any or all of the
Loans it may have funded hereunder to its designatingLender without the
consent of the Borrower or the Administrative Agent. Each of Holdings, the
Borrower, each Lender and the AdministrativeAgent hereby confirms that it will
not institute against a Conduit Lender or join any other person in instituting
against a Conduit Lenderany bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any state bankruptcy or similar
law, for one yearand one day after the payment in full of the latest maturing
commercial paper note issued by such Conduit Lender;
provided
,
however
,that each Lender designating any Conduit Lender hereby agrees to indemnify,
save and hold harmless each other party hereto and each LoanParty for any
loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender duringsuch period of forbearance.
(h)
If the Borrower wishes to replace the Loans or Commitments under any Facility
with ones having different terms, it shall have theoption, with the consent of
the Administrative Agent and subject to at least three Business Days' advance
notice to the Lendersunder such Facility, instead of prepaying the Loans or
reducing or terminating the Commitments to be replaced, to (i) require
theLenders under such Facility to assign such Loans or Commitments to the
Administrative Agent or its designees and (ii) amend the termsthereof in
accordance with Section 9.08 (with such replacement, if applicable, being
deemed to have been made pursuant to Section 9.08(d)).Pursuant to any such
assignment, all Loans and Commitments to be replaced shall be purchased at par
(allocated among the Lenders undersuch Facility in the same manner as would be
required if such Loans were being optionally prepaid or such Commitments were
being optionallyreduced or terminated by the Borrower and the Co-Borrower),
accompanied by payment of any accrued interest and fees thereon and any
amountsowing pursuant to Section 9.05(b). By receiving such purchase price,
the Lenders under such Facility shall automatically be deemedto have assigned
the Loans or Commitments under such Facility pursuant to the terms of the form
of Assignment and Acceptance attachedhereto as Exhibit A, and accordingly no
other action by such Lenders shall be required in connection therewith. The
provisions ofthis clause (h) are intended to facilitate the maintenance of the
perfection and priority of existing security interests in the Collateralduring
any such replacement.
(i)
Notwithstanding anything to the contrary in this Agreement, including Section
2.18(c) (which provisions shall not be applicableto clauses (i) or (j) of this
Section 9.04), any of Holdings or its Subsidiaries, including the Borrower,
may purchaseby way of assignment and become an Assignee with respect to Term
Loans at any time and from time to time from Lenders in accordance withSection
9.04(b) hereof (each, a "
Permitted Loan Purchase
");
provided
, that, in respect of any PermittedLoan Purchase, (A) no Permitted Loan
Purchase shall be made from the proceeds of any extensions of credit under any
Revolving Facility,(B) upon consummation of any such Permitted Loan Purchase,
the Loans purchased pursuant thereto shall be deemed to be automaticallyand
immediately cancelled and extinguished in accordance with Section 9.04(j), (C)
in connection with any such Permitted LoanPurchase, any of Holdings or its
Subsidiaries, including the Borrower and such Lender that is the assignor (an "
Assignor
")shall execute and deliver to the Administrative Agent a Permitted Loan
Purchase Assignment and Acceptance (and for the avoidance of doubt,(x) shall
make the representations and warranties set forth in the Permitted Loan
Purchase Assignment and Acceptance and (y) shallnot be required to execute and
deliver an Assignment and Acceptance pursuant to Section 9.04(b)(ii)(B)) and
shall otherwise complywith the conditions to assignments under this Section
9.04 and (D) no Default or Event of Default would exist immediately after
givingeffect on a Pro Forma Basis to such Permitted Loan Purchase.
(j)
Each Permitted Loan Purchase shall, for purposes of this Agreement be deemed
to be an automatic and immediate cancellation andextinguishment of such Term
Loans and
181
the Borrower shall, upon consummationof any Permitted Loan Purchase, notify
the Administrative Agent that the Register be updated to record such event as
if it were a prepaymentof such Loans.
(k)
In connection with any assignment of rights and obligations of any Defaulting
Lender hereunder, no such assignment shall be effectiveunless and until, in
addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additionalpayments to the Administrative Agent in
an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outrightpayment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with
theconsent of the Borrower and the Administrative Agent, the applicable pro
rata share of Loans previously requested but not funded by theDefaulting
Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in fullall payment liabilities
then owed by such Defaulting Lender to the Administrative Agent, each Issuing
Bank, the Swingline Lender or anyother Lender hereunder (and interest accrued
thereon) and (y) acquire (and fund as appropriate) its full pro rata share of
all Loansand participations in Letters of Credit and Swingline Loans in
accordance with its Revolving Facility Percentage;
provided
thatnotwithstanding the foregoing, in the event that any assignment of rights
and obligations of any Defaulting Lender hereunder shall becomeeffective under
applicable law without compliance with the provisions of this paragraph, then
the assignee of such interest shall be deemedto be a Defaulting Lender for all
purposes of this Agreement until such compliance occurs.
Section 9.05
Expenses;Indemnity
. (a) The Borrower agrees to pay (i) all reasonable and documented
out-of-pocket expenses (including OtherTaxes) incurred by the Administrative
Agent or the Collateral Agent in connection with the preparation of this
Agreement and theother Loan Documents, or by the Administrative Agent or the
Collateral Agent in connection with the administration of this Agreementand
any amendments, modifications or waivers of the provisions hereof or thereof,
including the reasonable fees, charges anddisbursements of Cahill Gordon &
Reindel
llp
, counsel for the AdministrativeAgent, the Collateral Agent, the Arrangers and
the Co-Manager, and, if necessary, the reasonable fees, charges and
disbursements ofone local counsel per jurisdiction, and (ii) all out-of-pocket
expenses (including Other Taxes) incurred by the Agents, anyIssuing Bank or
any Lender in connection with the enforcement of their rights in connection
with this Agreement and the other LoanDocuments, in connection with the Loans
made or the Letters of Credit issued hereunder, including the fees, charges
anddisbursements of a single counsel for all such persons, taken as a whole,
and, if necessary, a single local counsel in eachappropriate jurisdiction for
all such persons, taken as a whole (and, in the case of an actual or perceived
conflict of interestwhere such person affected by such conflict informs the
Borrower of such conflict and thereafter retains its own counsel with
theBorrower's prior written consent (not to be unreasonably withheld), of
another firm of such for such affected person).
(b)
The Borrower agrees to indemnify the Administrative Agent, the Collateral
Agent, the Arrangers, the Co-Manager, the Joint Bookrunners,each Issuing Bank,
each Lender, the Syndication Agents, the Documentation Agents, each of their
respective Affiliates, successors andassignors, and each of their respective
directors, officers, employees, agents, trustees, advisors and members (each
such person beingcalled an "
Indemnitee
") against, and to hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilitiesand related expenses, including reasonable counsel
fees, charges and disbursements (excluding the allocated costs of in house
counseland limited to not more than one counsel for all such Indemnitees,
taken as a whole, and, if necessary, a single local counsel in eachappropriate
jurisdiction for all such Indemnitees, taken as a whole (and, in the case of
an actual or perceived conflict of interest wherethe Indemnitee affected by
such conflict informs the Borrower of such conflict and thereafter retains its
own counsel with the Borrower'sprior written consent (not to be unreasonably
withheld), of another firm of counsel for such affected Indemnitee)), incurred
by or assertedagainst any Indemnitee arising out of, in any way connected
with, or as a result of (i) the execution or delivery of this Agreementor any
other Loan Document or any
182
agreement or instrument contemplatedhereby or thereby, the performance by the
parties hereto and thereto of their respective obligations thereunder or the
consummation ofthe ADT Transactions and the other transactions contemplated
hereby, (ii) the use of the proceeds of the Loans or the use of anyLetter of
Credit (including any refusal by any Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presentedin connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any violation of or liabilityunder Environmental Laws by the Borrower or
any Subsidiary, (iv) any actual or alleged presence, Release or threatened
Release ofor exposure to Hazardous Materials at, under, on, from or to any
property owned, leased or operated by the Borrower or any Subsidiaryor (v) any
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a partythereto and regardless of
whether such matter is initiated by a third party or by Holdings, the Borrower
or any of their subsidiariesor Affiliates;
provided
, that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims,damages, liabilities or related expenses (x)
are determined by a final, non-appealable judgment of a court of competent
jurisdictionto have resulted from the gross negligence, bad faith or willful
misconduct of such Indemnitee or any of its Related Parties, (y) arosefrom a
material breach of such Indemnitee's or any of its Related Parties'
obligations under any Loan Document (as determinedby a court of competent
jurisdiction in a final, non-appealable judgment) or (z) arose from any claim,
actions, suits, inquiries,litigation, investigation or proceeding that does
not involve an act or omission of the Borrower or any of its Affiliates and is
broughtby an Indemnitee against another Indemnitee (other than any claim,
actions, suits, inquiries, litigation, investigation or proceedingagainst any
Agent, any Issuing Bank, any Arranger or the Co-Manager in its capacity as
such). None of the Indemnitees (or any of theirrespective affiliates) shall be
responsible or liable to the Fund, Holdings, the Borrower or any of their
respective subsidiaries, Affiliatesor stockholders or any other person or
entity for any special, indirect, consequential or punitive damages, which may
be alleged as aresult of the Facilities or the ADT Transactions. The
provisions of this Section 9.05 shall remain operative and in full force
andeffect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repaymentof any of
the Obligations, the invalidity or unenforceability of any term or provision
of this Agreement or any other Loan Document, orany investigation made by or
on behalf of the Administrative Agent, any Issuing Bank or any Lender. All
amounts due under this Section 9.05shall be payable within 15 days after
written demand therefor accompanied by reasonable documentation with respect
to any reimbursement,indemnification or other amount requested.
(c)
Except as expressly provided in Section 9.05(a) with respect to Other Taxes,
which shall not be duplicative with any amountspaid pursuant to Section 2.17,
this Section 9.05 shall not apply to any Taxes (other than Taxes that
represent losses, claims,damages, liabilities and related expenses resulting
from a non-Tax claim), which shall be governed exclusively by Section 2.17
and,to the extent set forth therein, Section 2.15.
(d)
To the fullest extent permitted by applicable law, Holdings and the Borrower
shall not assert, and hereby waive, any claim againstany Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages)arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplatedhereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No
Indemniteeshall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by itthrough
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documentsor the transactions
contemplated hereby or thereby.
(e)
The agreements in this Section 9.05 shall survive the resignation of the
Administrative Agent, the Collateral Agent or anyIssuing Bank, the replacement
of any Lender, the
183
termination of the Commitments and therepayment, satisfaction or discharge of
all the other Obligations and the termination of this Agreement.
Section 9.06
Right of Set-off
. If an Event of Default shall have occurred and be continuing, each Lender
and each Issuing Bank is herebyauthorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (generalor special, time or demand, provisional or final) at any time
held and other Indebtedness at any time owing by such Lender or such
IssuingBank to or for the credit or the account of Holdings (prior to a
Qualified IPO), the Borrower or any Subsidiary against any of and allthe
obligations of Holdings (prior to a Qualified IPO) or the Borrower now or
hereafter existing under this Agreement or any other LoanDocument held by such
Lender or such Issuing Bank, irrespective of whether or not such Lender or
such Issuing Bank shall have made anydemand under this Agreement or such other
Loan Document and although the obligations may be unmatured;
provided
,that in the event that any Defaulting Lender shall exercise any such right of
setoff, (x) all amounts so set off shall be paid overimmediately to the
Administrative Agent for further application in accordance with the provisions
of Section 2.22 and, pending suchpayment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the
benefit of the AdministrativeAgent and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement
describing inreasonable detail the Obligations owing to such Defaulting Lender
as to which it exercised such right of setoff
. The rights ofeach Lender and each Issuing Bank under this Section 9.06 are
in addition to other rights and remedies (including other rights ofset-off)
that such Lender or such Issuing Bank may have.
Section 9.07
Applicable Law
. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY,
DISPUTE OR CAUSES OF ACTION (WHETHERIN CONTRACT OR TORT OR OTHERWISE) BASED
UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
(OTHER THAN AS EXPRESSLYSET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARDTO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION
OF ANY OTHER LAW.
Section 9.08
Waivers; Amendment
. (a) No failure or delay of the AdministrativeAgent, any Issuing Bank or any
Lender in exercising any right or power hereunder or under any Loan Document
shall operate as a waiverthereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforcesuch a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remediesof the
Administrative Agent, each Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are notexclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Documentor consent to any departure by Holdings,
the Borrower or any other Loan Party therefrom shall in any event be effective
unless the sameshall be permitted by clause (b) below, and then such waiver or
consent shall be effective only in the specific instance and forthe purpose
for which given. No notice or demand on Holdings, the Borrower or any other
Loan Party in any case shall entitle such personto any other or further notice
or demand in similar or other circumstances.
(b)
Neither this Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended or modified except(x) as provided in Section
2.14 or Section 2.21, (y) in the case of this Agreement, pursuant to an
agreement or agreementsin writing entered into by Holdings (prior to a
Qualified IPO), the Borrower and the Required Lenders (or, (A) in respect of
any waiver,amendment or modification of Section 6.11 (or any Default or Event
of Default in respect thereof) or of Section 4.01 after theClosing Date, the
Required Revolving Facility Lenders
184
voting as a single Class, rather thanthe Required Lenders, or (B) in respect
of any waiver, amendment or modification of Section 2.11(b) or (c), the
Required PrepaymentLenders, rather than the Required Lenders), and (z) in the
case of any other Loan Document, pursuant to an agreement or agreementsin
writing entered into by each Loan Party party thereto and the Administrative
Agent and consented to by the Required Lenders;
provided
,
however
, that no such agreement shall:
(i)
decrease or forgive the principal amount of, or extend the final maturity of,
or decrease the rate of interest on, any Loan orany L/C Disbursement, or
extend the stated expiration of any Letter of Credit beyond the applicable
Revolving Facility Maturity Date (exceptas provided in Section 2.05(c)),
without the prior written consent of each Lender directly adversely affected
thereby (which, notwithstandingthe foregoing, such consent of such Lender
directly adversely affected thereby shall be the only consent required
hereunder to make suchmodification);
provided
, that any amendment to the financial definitions in this Agreement shall not
constitute a reduction inthe rate of interest for purposes of this clause (i),
(ii)
increase or extend the Commitment of any Lender, or decrease the Commitment
Fees, L/C Participation Fees, any other Fees or prepaymentpremium of any
Lender without the prior written consent of such Lender (which, notwithstanding
the foregoing, such consent of such Lendershall be the only consent required
hereunder to make such modification);
provided
, that waivers or modifications of conditionsprecedent, covenants, Defaults or
Events of Default, mandatory prepayments or of a mandatory reduction in the
aggregate Commitments shallnot constitute an increase or extension of the
Commitments of any Lender for purposes of this clause (ii),
(iii)
extend or waive any Term Loan Installment Date or reduce the amount due on any
Term Loan Installment Date or extend any date onwhich payment of interest on
any Loan or any L/C Disbursement or any Fees is due, without the prior written
consent of each Lender directlyadversely affected thereby (which,
notwithstanding the foregoing, such consent of such Lender directly adversely
affected thereby shallbe the only consent required hereunder to make such
modification),
(iv)
amend the provisions of Section 7.02 in a manner that would by its terms alter
the
pro rata
sharing of payments requiredthereby, without the prior written consent of each
Lender adversely affected thereby (which, notwithstanding the foregoing, such
consentof such Lender directly adversely affected thereby shall be the only
consent required hereunder to make such modification),
(v)
amend or modify the provisions of this Section 9.08 or the definition of the
terms "Required Lenders," "MajorityLenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rightshereunder or make any determination or grant any consent
hereunder, without the prior written consent of each Lender adversely
affectedthereby (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreementmay be
included in the determination of the Required Lenders on substantially the
same basis as the Loans and Commitments are includedon the Closing Date),
(vi)
release all or substantially all of the Collateral or all or substantially all
of the Subsidiary Loan Parties from their respectiveGuarantees under the
Subsidiary Guarantee Agreement, unless, in the case of a Subsidiary Loan
Party, all or substantially all the EquityInterests of such Subsidiary Loan
Party is sold or otherwise disposed of in a transaction permitted by this
Agreement, without the priorwritten consent of each Lender other than a
Defaulting Lender;
185
(vii)
effect any waiver, amendment or modification that by its terms adversely
affects the rights in respect of payments or collateralof Lenders
participating in any Facility differently from those of Lenders participating
in another Facility, without the consent of theMajority Lenders participating
in the adversely affected Facility (it being agreed that the Required Lenders
may waive, in whole or inpart, any prepayment or Commitment reduction required
by Section 2.11 so long as the application of any prepayment or Commitmentreduct
ion still required to be made is not changed);
provided
,
further
, that no suchagreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Swingline Lender or an IssuingBank
hereunder without the prior written consent of the Administrative Agent, the
Swingline Lender or such Issuing Bank acting as suchat the effective date of
such agreement, as applicable. Each Lender shall be bound by any waiver,
amendment or modification authorizedby this Section 9.08 and any consent by
any Lender pursuant to this Section 9.08 shall bind any Assignee of such
Lender.
Notwithstanding anything to the contrary herein,no Defaulting Lender shall
have the right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiveror consent which by its terms requires the
consent of all Lenders or each affected Lender may be affected with the
consent of the applicableLenders other than Defaulting Lenders), except that
(x) the Commitment of any Defaulting Lender may not be increased or extended
withoutthe consent of such Lender and (y) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lenderthat
by its terms affects any Defaulting Lender disproportionately adversely
relative to other affected Lenders shall require the consentof such Defaulting
Lender.
(c)
Without the consent of any Lender or Issuing Bank, the Loan Parties and the
Administrative Agent may (in their respective solediscretion, or shall, to the
extent required by any Loan Document) enter into any amendment, modification
or waiver of any Loan Document,or enter into any new agreement or instrument,
to effect the granting, perfection, protection, expansion or enhancement of
any securityinterest in any Collateral or additional property to become
Collateral for the benefit of the Secured Parties, to include holders of
OtherFirst Liens in the benefit of the Security Documents in connection with
the incurrence of any Other First Lien Debt, or as required bylocal law to
give effect to, or protect any security interest for the benefit of the
Secured Parties, in any property or so that the securityinterests therein
comply with applicable law or this Agreement or in each case to otherwise
enhance the rights or benefits of any Lenderunder any Loan Document.
(d)
Notwithstanding the foregoing, this Agreement may be amended (or amended and
restated) with the written consent of the RequiredLenders, the Administrative
Agent, Holdings (prior to a Qualified IPO) and the Borrower (a) to permit
additional extensions of creditto be outstanding hereunder from time to time
and the accrued interest and fees and other obligations in respect thereof to
share ratablyin the benefits of this Agreement and the other Loan Documents
with the Term Loans and the Revolving Facility Loans and the accrued
interestand fees and other obligations in respect thereof and (b) to include
appropriately the holders of such extensions of credit in anydetermination of
the requisite lenders required hereunder, including Required Lenders and the
Required Revolving Facility Lenders.
(e)
Notwithstanding the foregoing, technical and conforming modifications to the
Loan Documents may be made with the consent of theBorrower and the
Administrative Agent (but without the consent of any Lender) to the extent
necessary (A) to integrate any IncrementalTerm Loan Commitments or Incremental
Revolving Facility Commitments in a manner consistent with Section 2.21,
including, with respectto Other Revolving Loans or Other Term Loans, as may be
necessary to establish such Incremental Term Loan Commitments or Incremental
RevolvingFacility
186
Commitments as a separate Class or tranchefrom the existing Incremental Term
Loan Commitments or Incremental Revolving Facility Commitments, as applicable,
and, in the case ofExtended Term Loans, to reduce the amortization schedule of
the related existing Class of Term Loans proportionately, (B) to integrateany
Other First Lien Debt, (C) to cure any ambiguity, omission, defect or
inconsistency or (D) to effect an alternate interest ratein a manner
consistent with Section 2.14.
(f)
Each of the parties hereto hereby agrees that the Administrative Agent may
take any and all action as may be necessary to ensurethat all Term Loans
established pursuant to Section 2.21 after the Closing Date that will be
included in an existing Class of TermLoans outstanding on such date (an "
Applicable Date
"), when originally made, are included in each Borrowing of outstandingTerm
Loans of such Class (the "
Existing Class Loans
"), on a pro rata basis, and/or to ensure that, immediately aftergiving effect
to such new Term Loans (the "
New Class Loans
" and, together with the Existing Class Loans, the "
ClassLoans
"), each Lender holding Class Loans will be deemed to hold its Pro Rata Share
of each Class Loan on the Applicable Date(but without changing the amount of
any such Lender's Term Loans), and each such Lender shall be deemed to have
effectuated suchassignments as shall be required to ensure the foregoing. The "
Pro Rata Share
" of any Lender on the Applicable Dateis the ratio of (1) the sum of such
Lender's Existing Class Loans immediately prior to the Applicable Date
plus
theamount of New Class Loans made by such Lender on the Applicable Date over
(2) the aggregate principal amount of all Class Loans onthe Applicable Date.
(g)
With respect to the incurrence of any secured or unsecured Indebtedness
(including any Intercreditor Agreement relating thereto),the Borrower may
elect (in its discretion, but shall not be obligated) to deliver to the
Administrative Agent a certificate of a ResponsibleOfficer at least three
Business Days prior to the incurrence thereof (or such shorter time as the
Administrative Agent may agree in itsreasonable discretion), together with
either drafts of the material documentation relating to such Indebtedness or a
description of suchIndebtedness (including a description of the Liens intended
to secure the same or the subordination provisions thereof, as applicable)in
reasonably sufficient detail to be able to make the determinations referred to
in this paragraph, which certificate shall either, atthe Borrower's election,
(x) state that the Borrower has determined in good faith that such
Indebtedness satisfies the requirementsof the applicable provisions of
Sections 6.01 and 6.02 (taking into account any other applicable provisions of
this Section 9.08),in which case such certificate shall be conclusive evidence
thereof, or (y) request the Administrative Agent to confirm, based onthe
information set forth in such certificate and any other information reasonably
requested by the Administrative Agent, that such Indebtednesssatisfies such
requirements, in which case the Administrative Agent may determine whether, in
its reasonable judgment, such requirementshave been satisfied (in which case
it shall deliver to the Borrower a written confirmation of the same), with any
such determination ofthe Administrative Agent to be conclusive evidence
thereof, and the Lenders hereby authorize the Administrative Agent to make
such determinations.
(h)
Notwithstanding the foregoing, this Agreement may be amended, waived or
otherwise modified with the written consent of the RequiredRevolving Facility
Lenders, the Administrative Agent, Holdings (prior to a Qualified IPO) and the
Borrower with respect to (i) theprovisions of Section 4.01, solely as they
relate to the Revolving Facility Loans, Swingline Loans and Letters of Credit
and (ii) theprovisions of Section 6.11.
(i)
Notwithstanding the foregoing, this Agreement may be amended, with the written
consent of each Revolving Facility Lender, theAdministrative Agent, Holdings
and the Borrower to the extent necessary to integrate any Alternate Currency
with respect to the RevolvingFacility Loans or the Letters of Credit.
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Section 9.09
Interest Rate Limitation
. Notwithstandinganything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges that are treated
as interestunder applicable law (collectively, the "
Charges
"), as provided for herein or in any other document executed in connectionherewi
th, or otherwise contracted for, charged, received, taken or reserved by any
Lender or any Issuing Bank, shall exceed the maximumlawful rate (the "
Maximum Rate
") that may be contracted for, charged, taken, received or reserved by such
Lender inaccordance with applicable law, the rate of interest payable
hereunder, together with all Charges payable to such Lender or such
IssuingBank, shall be limited to the Maximum Rate;
provided
, that such excess amount shall be paid to such Lender or such Issuing Bankon
subsequent payment dates to the extent not exceeding the legal limitation.
Section 9.10
Entire Agreement
. This Agreement, the other Loan Documents and the agreements regarding
certain Fees referred to hereinconstitute the entire contract between the
parties relative to the subject matter hereof. Any previous agreement among or
representationsfrom the parties or their Affiliates with respect to the
subject matter hereof is superseded by this Agreement and the other Loan
Documents.Notwithstanding the foregoing, the 2015 Fee Letter, the 2016 Fee
Letter, the June 2016 Engagement Letter, the December 2016 EngagementLetter,
the January 2017 Engagement Letter, the June 2017 Engagement Letter, the
October 2018 Fee Letter, the November 2018 AdditionalFee Letter, the March
2019 Engagement Letter, the September 2019 Engagement Letter, the January 2021
Engagement Letter, the 2023 Amendedand Restated Engagement Letter, the 2024
Engagement Letter and the May 2024 Engagement Letter shall survive the
execution and deliveryof this Agreement and remain in full force and effect.
Nothing in this Agreement or in the other Loan Documents, expressed or
implied,is intended to confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities underor by reason of
this Agreement or the other Loan Documents.
Section 9.11
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAYHAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENTOR ANY OF THE OTHER LOAN DOCUMENTS (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NOREPRESENTATIVE
, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THEEVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCEDTO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONSIN THIS SECTION 9.11.
Section 9.12
Severability
. In the event any one or more of the provisions contained in this Agreement
or in any other Loan Document shouldbe held invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions containedherein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replacethe invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to thatof the invalid,
illegal or unenforceable provisions.
Section 9.13
Counterparts
. This Agreement may be executed in two or more counterparts, each of which
shall constitute an original butall of which, when taken together, shall
constitute but one contract, and shall become effective as provided in Section
9.03. Deliveryof an executed counterpart to this Agreement by facsimile
transmission (or other electronic transmission pursuant to procedures
approvedby the Administrative Agent) shall be as effective as delivery of a
manually signed original.
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Section 9.14
Headings
. Article and Section headingsand the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect theconstruction of, or to be taken into consideration in interpreting,
this Agreement.
Section 9.15
Jurisdiction; Consent to Service of Process
(a). (a) The Borrowerand each other Loan Party irrevocably and unconditionally
agrees that it will not commence any action, litigation or proceeding of
anykind or description, whether in law or equity, whether in contract or in
tort or otherwise, against the Administrative Agent, the CollateralAgent, any
Lender, or any Affiliate of the foregoing in any way relating to this
Agreement or any other Loan Document or the transactionsrelating hereto or
thereto, in any forum other than the courts of the State of New York sitting
in New York County, and of theUnited States District Court of the Southern
District of New York, and any appellate court from any thereof, and each of
the partieshereto irrevocably and unconditionally submits to the jurisdiction
of such courts and agrees that all claims in respect of any such action,litigati
on or proceeding may be heard and determined in such New York State court or,
to the fullest extent permitted by applicablelaw, in such federal court. Each
of the parties hereto agrees that a final judgment in any such action,
litigation or proceeding shallbe conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in thisAgreement or in any other Loan Document shall affect any right
that the Administrative Agent, any Issuing Bank or any Lender may
otherwisehave to bring any action or proceeding relating to this Agreement or
any other Loan Document against the Borrower or any other Loan Partyor its
properties in the courts of any jurisdiction.
(b)
Each of the parties hereto hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectivelydo so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relatingto this Agreement or the other Loan
Documents in any New York State or federal court. Each of the parties hereto
hereby irrevocablywaives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding inany
such court.
(c)
Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01.Nothing in this Agreement will
affect the right of any party to this Agreement or any other Loan Document to
serve process in any othermanner permitted by law.
Section 9.16
Confidentiality
. Each of the Lenders, each Issuing Bank and each of the Agents agrees that it
shall maintain in confidenceany information relating to Holdings, any Parent
Entity, the Borrower and any Subsidiary furnished to it by or on behalf of
Holdings,any Parent Entity, the Borrower or any Subsidiary (other than
information that (a) has become generally available to the public otherthan as
a result of a disclosure by such party, (b) has been independently developed
by such Lender, such Issuing Bank or such Agentwithout violating this Section
9.16 or (c) was available to such Lender, such Issuing Bank or such Agent from
a third partyhaving, to such person's knowledge, no obligations of
confidentiality to Holdings, any Parent Entity, the Borrower or any otherLoan
Party) and shall not reveal the same other than to its directors, trustees,
officers, employees and advisors with a need to knowand any numbering,
administration or settlement service providers or to any person that approves
or administers the Loans on behalf ofsuch Lender (so long as each such person
shall have been instructed to keep the same confidential in accordance with
this Section 9.16),except: (A) to the extent necessary to comply with law or
any legal process or the requirements of any Governmental Authority,
theNational Association of Insurance Commissioners or of any securities
exchange on which securities of the disclosing party or any Affiliateof the
disclosing party are listed or traded, (B) as part of normal reporting or
review procedures to, or examinations by, GovernmentalAuthorities or
self-regulatory authorities, including the National Association of Insurance
Commissioners or the Financial Industry RegulatoryAuthority, Inc., (C) to its
parent companies, Affiliates or auditors (so long as each such person shall
have been instructed to keepthe
189
same confidential in accordance with this Section 9.16),(D) in order to
enforce its rights under any Loan Document in a legal proceeding, (E) to any
pledgee under Section 9.04(d) orany other prospective assignee of, or
prospective Participant in, any of its rights under this Agreement (so long as
such person shallhave been instructed to keep the same confidential in
accordance with this Section 9.16) and (F) to any direct or indirect
contractualcounterparty in Hedging Agreements or such contractual
counterparty's professional advisor (so long as such contractual counterpartyor
professional advisor to such contractual counterparty agrees to be bound by
the provisions of this Section 9.16).
Section 9.17
Platform; Borrower Materials
. The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arrangerswill make available to the Lenders and the Issuing Banks
materials and/or information provided by or on behalf of the Borrower
hereunder(collectively, "
Borrower Materials
") by posting the Borrower Materials on IntraLinks or another similar
electronicsystem (the "
Platform
"), and (b) certain of the Lenders may be "public-side" Lenders (i.e.,
Lendersthat do not wish to receive material non-public information (or, if
Holdings is not at the time a public reporting company, material informationof
a type that would not reasonably be expected to be publicly available if
Holdings was a public reporting company) with respect to Holdings,the Borrower
or its Subsidiaries or any of their respective securities) (each, a "
Public Lender
"). The Borrower herebyagrees that it will use commercially reasonable efforts
to identify that portion of the Borrower Materials that may be distributed
tothe Public Lenders and that (i) all such Borrower Materials shall be clearly
and conspicuously marked "PUBLIC" which,at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof, (ii) by marking
BorrowerMaterials "PUBLIC," the Borrower shall be deemed to have authorized
the Administrative Agent, the Arrangers, the Co-Manager,the Issuing Banks and
the Lenders to treat such Borrower Materials as solely containing information
that is either (A) publicly availableinformation or (B) not material (although
it may be sensitive and proprietary) with respect to Holdings, the Borrower or
its Subsidiariesor any of their respective securities for purposes of United
States Federal and state securities laws (
provided
,
however
,that such Borrower Materials shall be treated as set forth in Section 9.16,
to the extent such Borrower Materials constitute informationsubject to the
terms thereof), (iii) all Borrower Materials marked "PUBLIC" are permitted to
be made available througha portion of the Platform designated "Public
Investor;" and (iv) the Administrative Agent and the Arrangers shall
beentitled to treat any Borrower Materials that are not marked "PUBLIC" as
being suitable only for posting on a portion of thePlatform not designated
"Public Investor."
Section 9.18
Release of Liens and Guarantees
.
(a)
The Lenders, the Issuing Banks and the other Secured Parties hereby
irrevocably agree that the Liens granted to the CollateralAgent by the Loan
Parties on any Collateral shall be automatically released: (i) in full upon
the occurrence of the Termination Dateas set forth in Section 9.18(d) below;
(ii) upon the Disposition of such Collateral by any Loan Party to a person
that is not(and is not required to become) a Loan Party in a transaction not
prohibited by this Agreement (and the Collateral Agent may rely conclusivelyon
a certificate to that effect provided to it by any Loan Party upon its
reasonable request without further inquiry);
provided
that, for the avoidance of doubt, with respect to any Disposition constituting
an operating lease or license, the underlying propertyretained by such Loan
Party will not be so released, (iii) to the extent that such Collateral
comprises property leased to a LoanParty, upon termination or expiration of
such lease (and the Collateral Agent may rely conclusively on a certificate to
that effect providedto it by any Loan Party upon its reasonable request
without further inquiry), (iv) if the release of such Lien is approved,
authorizedor ratified in writing by the Required Lenders (or such other
percentage of the Lenders whose consent may be required in accordance
withSection 9.08), (v) to the extent that the property constituting such
Collateral is owned by any Guarantor, upon the releaseof such Guarantor from
its obligations under the Guarantee in accordance with the Holdings Guarantee
and Pledge Agreement, the SubsidiaryGuarantee Agreement or clause (b) below
(and the Collateral Agent may rely conclusively on a certificate to that
190
effect provided to it by any Loan Partyupon its reasonable request without
further inquiry), (vi) as provided in Section 8.11 (and the Collateral Agent
may rely conclusivelyon a certificate to that effect provided to it by any
Loan Party upon its reasonable request without further inquiry), and (vii)
asrequired by the Collateral Agent to effect any Disposition of Collateral in
connection with any exercise of remedies of the CollateralAgent pursuant to
the Security Documents. Any such release shall not in any manner discharge,
affect, or impair the Obligations or anyLiens (other than those being
released) upon (or obligations (other than those being released) of the Loan
Parties in respect of) allinterests retained by the Loan Parties, including
the proceeds of any Disposition, all of which shall continue to constitute
part of theCollateral except to the extent otherwise released in accordance
with the provisions of the Loan Documents.
(b)
In addition, (i) the Lenders, the Issuing Banks and the other Secured Parties
hereby irrevocably agree that the Guarantorsshall be automatically released
from the Guarantees (and if such Guarantor is also a Co-Borrower, from its
obligations as a Co-Borrowerhereunder) upon consummation of any transaction
not prohibited hereunder resulting in such Subsidiary ceasing to constitute a
SubsidiaryLoan Party or otherwise becoming an Excluded Subsidiary (and the
Collateral Agent may rely conclusively on a certificate to that effectprovided
to it by any Loan Party upon its reasonable request without further inquiry),
and (ii) immediately prior to the consummationof a Qualified IPO of the
Borrower, the Guarantee incurred by Holdings of the Obligations shall
automatically terminate and Holdings shallbe released from its obligations
under the Loan Documents, shall cease to be a Loan Party and any Liens created
by any Loan Documentson any assets or Equity Interests owned by Holdings shall
automatically be released (unless, in each case, the Borrower shall elect
inits sole discretion that such release of Holdings shall not be effected).
(c)
The Lenders, the Issuing Banks and the other Secured Parties hereby authorize
the Administrative Agent and the Collateral Agent,as applicable, to execute
and deliver any instruments, documents, and agreements necessary or desirable
to evidence and confirm the releaseof any Guarantor or Collateral pursuant to
the foregoing provisions of this Section 9.18, all without the further consent
or joinderof any Lender or any other Secured Party. Any representation,
warranty or covenant contained in any Loan Document relating to any
suchCollateral or Guarantor shall no longer be deemed to be made. In
connection with any release hereunder, the Administrative Agent and
theCollateral Agent shall promptly (and the Secured Parties hereby authorize
the Administrative Agent and the Collateral Agent to) take suchaction and
execute any such documents as may be reasonably requested by the Borrower and
at the Borrower's expense in connectionwith the release of any Liens created
by any Loan Document in respect of such Subsidiary, property or asset;
provided
, that theAdministrative Agent shall have received a certificate of a
Responsible Officer of the Borrower containing such certifications as
theAdministrative Agent shall reasonably request.
(d)
Notwithstanding anything to the contrary contained herein or any other Loan
Document, on the Termination Date, upon request ofthe Borrower, the
Administrative Agent and/or the Collateral Agent, as applicable, shall
(without notice to, or vote or consent of, anySecured Party) take such actions
as shall be required to release its security interest in all Collateral, and
to release all obligationsunder any Loan Document, whether or not on the date
of such release there may be any (i) obligations in respect of any Secured
HedgeAgreements or any Secured Cash Management Agreements and (ii) any
contingent indemnification obligations or expense reimbursementclaims not then
due;
provided
, that the Administrative Agent shall have received a certificate of a
Responsible Officer of theBorrower containing such certifications as the
Administrative Agent shall reasonably request. Any such release of obligations
shall bedeemed subject to the provision that such obligations shall be
reinstated if after such release any portion of any payment in respectof the
obligations guaranteed thereby shall be rescinded or must otherwise be
restored or returned upon the insolvency, bankruptcy, dissolution,liquidation
or reorganization of the Borrower or any Guarantor, or upon or as
191
a result of the appointment of a receiver,intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property,or otherwise, all as though such payment had
not been made. The Borrower agrees to pay all reasonable and documented
out-of-pocket expensesincurred by the Administrative Agent or the Collateral
Agent (and their respective representatives) in connection with taking such
actionsto release security interest in all Collateral and all obligations
under the Loan Documents as contemplated by this Section 9.18(d).
(e)
Obligations of the Borrower or any of its Subsidiaries under any Secured Cash
Management Agreement or Secured Hedge Agreement (aftergiving effect to all
netting arrangements relating to such Secured Hedge Agreements) shall be
secured and guaranteed pursuant to the SecurityDocuments only to the extent
that, and for so long as, the other Obligations are so secured and guaranteed.
No person shall have any votingrights under any Loan Document solely as a
result of the existence of obligations owed to it under any such Secured Hedge
Agreement orSecured Cash Management Agreement. For the avoidance of doubt, no
release of Collateral or Guarantors effected in the manner permittedby this
Agreement shall require the consent of any holder of obligations under Secured
Hedge Agreements or any Secured Cash ManagementAgreements.
Section 9.19
Judgment Currency
. If, for the purposes of obtaining judgment in any court, it is necessary to
convert a sum due hereunderor any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in
accordance withnormal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
precedingthat on which final judgment is given. The obligation of the Borrower
and the Co-Borrower in respect of any such sum due from it to theAdministrative
Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the"
Judgment Currency
") other than that in which such sum is denominated in accordance with the
applicable provisionsof this Agreement (the "
Agreement Currency
"), be discharged only to the extent that on the Business Day following
receiptby the Administrative Agent of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent may in accordance withnormal
banking procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchasedis less than the sum
originally due to the Administrative Agent from the Borrower or such
Co-Borrower in the Agreement Currency, the Borrowerand the Co-Borrower agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify
the Administrative Agent or theperson to whom such obligation was owing
against such loss. If the amount of the Agreement Currency so purchased is
greater than the sumoriginally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess
to theBorrower and the Co-Borrower (or to any other person who may be entitled
thereto under applicable law).
Section 9.20
USA PATRIOT Act Notice
. Each Lender that is subject to the USA PATRIOT Act and the Administrative
Agent (for itself andnot on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Act, it is required
toobtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Partyand other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordancewith the USA PATRIOT Act.
Section 9.21
Affiliate Lenders
.
(a)
Each Lender who is an Affiliate of the Borrower, excluding (x) Holdings, the
Borrower and their respective Subsidiaries and(y) any Debt Fund Affiliate
Lender (each, an "
Affiliate Lender
"; it being understood that (x) neither Holdings,the Borrower, nor any of
their Subsidiaries may be Affiliate Lenders and (y) Debt Fund Affiliate
Lenders and Affiliate Lenders maybe Lenders hereunder in accordance with
Section 9.04, subject in the case of Affiliate Lenders, to this
192
Section 9.21), in connection withany (i) consent (or decision not to consent)
to any amendment, modification, waiver, consent or other action with respect
to anyof the terms of any Loan Document, (ii) other action on any matter
related to any Loan Document or (iii) direction to the AdministrativeAgent,
the Collateral Agent or any Lender to undertake any action (or refrain from
taking any action) with respect to or under any LoanDocument, agrees that,
except with respect to any amendment, modification, waiver, consent or other
action (1) described in clauses (i),(ii), (iii) or (iv) of the first proviso
of Section 9.08(b) or (2) that adversely affects such Affiliate Lender (inits
capacity as a Lender) in a disproportionately adverse manner as compared to
other Lenders, such Affiliate Lender shall be deemed tohave voted its interest
as a Lender without discretion in such proportion as the allocation of voting
with respect to such matter by Lenderswho are not Affiliate Lenders. Each
Affiliate Lender hereby irrevocably appoints the Administrative Agent (such
appointment being coupledwith an interest) as such Affiliate Lender's
attorney-in-fact, with full authority in the place and stead of such Affiliate
Lenderand in the name of such Affiliate Lender, from time to time in the
Administrative Agent's discretion to take any action and to executeany
instrument that the Administrative Agent may deem reasonably necessary to
carry out the provisions of this clause (a).
(b)
Notwithstanding anything to the contrary in this Agreement, no Affiliate
Lender shall have any right to (1) attend (includingby telephone) any meeting
or discussions (or portion thereof) among the Administrative Agent or any
Lender to which representatives ofthe Borrower are not then present, (2)
receive any information or material prepared by Administrative Agent or any
Lender or anycommunication by or among Administrative Agent and/or one or more
Lenders, except to the extent such information or materials have beenmade
available to the Borrower or its representatives, (3) make or bring (or
participate in, other than as a passive participantin or recipient of its pro
rata benefits of) any claim, in its capacity as a Lender, against
Administrative Agent, the Collateral Agentor any other Lender with respect to
any duties or obligations or alleged duties or obligations of such Agent or
any other such Lenderunder the Loan Documents, (4) purchase any Term Loan if,
immediately after giving effect to such purchase, Affiliate Lenders in
theaggregate would own Term Loans with an aggregate principal amount in excess
of 25% of the aggregate principal amount of all Term Loansthen outstanding or
(5) purchase any Revolving Facility Loans or Revolving Facility Commitments.
It shall be a condition precedent toeach assignment to an Affiliate Lender
that such Affiliate Lender shall have (x) represented to the assigning Lender
in the applicableAssignment and Acceptance, and notified the Administrative
Agent, that it is (or will be, following the consummation of such
assignment)an Affiliate Lender and that the aggregate amount of Term Loans
held by it giving effect to such assignments shall not exceed the
amountpermitted by clause (d) of the preceding sentence and (y) represented in
the applicable Assignment and Acceptance that it isnot in possession of
material non-public information (within the meaning of United States federal
and state securities laws) with respectto Holdings, the Borrower, its
Subsidiaries or their respective securities (or, if Holdings is not at the
time a public reporting company,material information of a type that would not
be reasonably expected to be publicly available if Holdings were a public
reporting company)that (A) has not been disclosed to the assigning Lender or
the Lenders generally (other than because any such Lender does not wishto
receive material non-public information with respect to Holdings, the Borrower
or its Subsidiaries) and (B) could reasonably beexpected to have a material
effect upon, or otherwise be material to, the assigning Lender's decision make
such assignment.
Section 9.22
Agency of the Borrower for the Loan Parties
. Each of the other Loan Parties hereby appoints the Borrower as its agent
forall purposes relevant to this Agreement and the other Loan Documents,
including the giving and receipt of notices and the execution anddelivery of
all
193
documents, instruments and certificates contemplatedherein and therein and all
modifications hereto and thereto.
Section 9.23
No Liability of the Issuing Banks
. The Borrower and the Co-Borrower assumes all risks of the acts or omissions
of any beneficiaryor transferee of any Letter of Credit with respect to its
use of such Letter of Credit. Neither any Issuing Bank nor any of its
officersor directors shall be liable or responsible for: (a) the use that may
be made of any Letter of Credit or any acts or omissions ofany beneficiary or
transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsementthereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) paymentby such Issuing Bank against presentation of documents that
do not comply with the terms of a Letter of Credit, including failure of
anydocuments to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in makingor failing to make
payment under any Letter of Credit, except that the Borrower and the
Co-Borrower shall have a claim against such IssuingBank, and such Issuing Bank
shall be liable to the Borrower and the Co-Borrower, to the extent of any
direct, but not consequential, damagessuffered by the Borrower that the
Borrower proves were caused by (i) such Issuing Bank's willful misconduct or
gross negligenceas determined in a final, non-appealable judgment by a court
of competent jurisdiction in determining whether documents presented underany
Letter of Credit comply with the terms of the Letter of Credit or (ii) such
Issuing Bank's willful failure to make lawfulpayment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying
with the terms and conditionsof the Letter of Credit. In furtherance and not
in limitation of the foregoing, such Issuing Bank may accept documents that
appear ontheir face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
Section 9.24
Acknowledgment and Consent to Bail-In of Affected Financial Institutions
. Notwithstanding anything to the contrary in anyLoan Document or in any other
agreement, arrangement or understanding among any such parties, each party
hereto acknowledges that anyliability of any Affected Financial Institution
arising under any Loan Document, to the extent such liability is unsecured,
may be subjectto the write-down and conversion powers of the applicable
Resolution Authority and agrees and consents to, and acknowledges and agreesto
be bound by:
(a)
the application of any Write-Down and Conversion Powers by the applicable
Resolution Authority to any such liabilities arisinghereunder which may be
payable to it by any party hereto that is an Affected Financial Institution;
and
(b)
the effects of any Bail-In Action on any such liability, including, if
applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such Affected Financial Institution,its parent
undertaking, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instrumentsof ownership will be
accepted by it in lieu of any rights with respect to any such liability under
this Agreement or any other Loan Document;or
(iii)
the variation of the terms of such liability in connection with the exercise
of the write-down and conversion powers of the applicableResolution Authority.
Section 9.25
Acknowledgment Regarding Any Supported QFCs
. To the extent that the Loan Documents provide support, through a guaranteeor
otherwise, for any Swap Obligation or any other agreement or instrument that
is a QFC (such support, "
QFC Credit Support
"and each such QFC, a
194
"
Supported QFC
"), the partiesacknowledge and agree as follows with respect to the resolution
power of the Federal Deposit Insurance Corporation under the Federal
DepositInsurance Act and Title II of the Dodd-Frank Wall Street Reform and
Consumer Protection Act (together with the regulations promulgatedthereunder,
the "
U.S. Special Resolution Regimes
") in respect of such Supported QFC and QFC Credit Support (with theprovisions
below applicable notwithstanding that the Loan Documents and any Supported QFC
may in fact be stated to be governed by thelaws of the State of New York
and/or of the United States or any other state of the United States):
(a)
In the event a Covered Entity that is party to a Supported QFC (each, a "
Covered Party
") becomes subject toa proceeding under a U.S. Special Resolution Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support
(andany interest and obligation in or under such Supported QFC and such QFC
Credit Support, and any rights in property securing such SupportedQFC or such
QFC Credit Support) from such Covered Party will be effective to the same
extent as the transfer would be effective underthe U.S. Special Resolution
Regime if the Supported QFC and such QFC Credit Support (and any such
interest, obligation and rights in property)were governed by the laws of the
United States or a state of the United States. In the event a Covered Party or
a BHC Act Affiliate ofa Covered Party becomes subject to a proceeding under a
U.S. Special Resolution Regime, Default Rights under the Loan Documents that
mightotherwise apply to such Supported QFC or any QFC Credit Support that may
be exercised against such Covered Party are permitted to be exercisedto no
greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if the Supported QFC and theLoan Documents were
governed by the laws of the United States or a state of the United States.
Without limitation of the foregoing, itis understood and agreed that rights
and remedies of the parties with respect to a Defaulting Lender shall in no
event affect the rightsof any Covered Party with respect to a Supported QFC or
any QFC Credit Support.
(b)
As used in this
Section 9.25
, the following terms have the following meanings:
"
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)) ofsuch party.
"
Covered Entity
"means any of the following:
i. a"covered entity" as that term is defined in, and interpreted in
accordance with, 12 C.F.R. (s) 252.82(b);
ii. a"covered bank" as that term is defined in, and interpreted in
accordance with, 12 C.F.R. (s) 47.3(b); or
iii. a"covered FSI" as that term is defined in, and interpreted in
accordance with, 12 C.F.R. (s) 382.2(b).
"
Default Right
"has the meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R. (s)(s) 252.81, 47.2 or 382.1, asapplicable.
"
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).
Section 9.26
Sixteenth Amended and Restated Credit Agreement; Effectiveness of Amendment
and Restatement
. On and after the SixteenthIncremental Assumption and Amendment
195
Agreement Effective Date, all obligations ofthe Loan Parties under the
Fifteenth Amended and Restated Credit Agreement shall continue in full force
and effect as obligations ofthe Loan Parties hereunder and the provisions of
the Fifteenth Amended and Restated Credit Agreement shall be superseded by the
provisionshereof except for provisions under the Fifteenth Amended and
Restated Credit Agreement that expressly survive the termination thereof.The
parties hereto acknowledge and agree that (a) the amendment and restatement of
the Fifteenth Amended and Restated Credit Agreementpursuant to this Agreement
and all other Loan Documents executed and delivered in connection herewith
shall not constitute a novationof the Fifteenth Amended and Restated Credit
Agreement and the other Loan Documents as in effect prior to the Sixteenth
Incremental Assumptionand Amendment Agreement Effective Date and (b) all
references in the other Loan Documents to the Fifteenth Amended and Restated
CreditAgreement shall be deemed to refer without further amendment to this
Agreement.
196
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