“
FDIC
” means the Federal
Deposit Insurance Corporation.
“
Federal Funds Rate
”
means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day;
provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business Day, (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent and (c) if the Federal Funds Rate would otherwise be less than 0% per annum, the Federal Funds
Rate will be deemed to be 0% per annum for purposes of this Agreement.
“
Federal Reserve
”
means the Board of Governors of the Federal Reserve System of the United States, together with its constituent banks and agencies.
“
Fee Letter
”
means the amended and restated fee letter, dated December 13, 2015, among the Company, Bank of America, MLPFS, SunTrust Bank, STRH, MUFG and Citizens, together with each other fee letter entered into with any Person as lead arranger or
administrative agent for the Facilities or any loans thereunder.
“
Fifth Amendment
”
means that certain Fifth Amendment to the Credit Agreement, dated as of January 18, 2019, by and among the Borrowers, the Administrative Agent and the Lenders party thereto.
“
Fifth Amendment
Documentation Agents
” means Bank of Montreal and Santander Bank, N.A.
“
Fifth Amendment Joint
Lead Arrangers
” means BANA, STRH, MUFG, Citizens and Wells Fargo Securities, LLC.
“
Financial Covenant
”
has the meaning specified in
Section 8.01(b)
.
“
First Amendment
”
means that certain First Amendment to the Credit Agreement, dated as of July 3, 2017, by and among the Borrowers, the Domestic Subsidiary Guarantors, the Administrative Agent and the Lenders party thereto.
“
First
Amendment Consenting Term B-1 Lenders
” means, collectively, the Converting Consenting Term B-1 Lenders and the Non-Converting Consenting Term B-1 Lenders.
“
First Amendment
Effective Date
” has the meaning assigned to such term in the First Amendment.
“
Flood Insurance Laws
”
means, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute
thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“
Foreign Borrower
”
means any Borrower that is organized under the laws of a jurisdiction other than the Unites States, a state thereof or the District of Columbia.
“
Foreign Lender
”
means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the law of a jurisdiction other than that
in which such Borrower is resident for tax purposes (including such a Lender when acting in the capacity of the L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“
Foreign Loan Party
”
means each Foreign Subsidiary that is a Loan Party.
“
Foreign Obligation
Provider
” has the meaning set forth in the definition of “Foreign Subsidiary Secured Obligations.”
“
Foreign Obligations
”
means all of the Obligations of each Foreign Loan Party, including without limitation the Foreign Subsidiary Secured Obligations.
“
Foreign Pension Plan
”
means a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which the Company or any Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions.
“
Foreign Plan
”
means each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed
to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by the Company or any of its Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by
a Governmental Authority.
“
Foreign Prepayment
Event
” has the meaning specified in
Section 2.05(b)(vi)
.
“
Foreign Subsidiary
”
means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.
“
Foreign Subsidiary
Guarantors
” means each Person that is from time to time a party (but only for so long as they are a party) to a Foreign Subsidiary Guaranty. For the avoidance of doubt, Foreign Subsidiary Guarantors shall not guarantee any
Obligations of the Company or any Domestic Subsidiary.
“
Foreign Subsidiary
Guaranty
” means a guarantee of the Foreign Obligations made by a Foreign Subsidiary in favor of the Administrative Agent and the other parties benefitting thereunder, substantially in the form of
Exhibit H
, or otherwise reasonably acceptable to the Administrative Agent. Any such guarantee may be a Reduced Guaranty, and any such guarantee made by WES or any of its direct or
indirect Subsidiaries may, at the election of the Company, be a Limited Guaranty.
“
Foreign Subsidiary
Pledge Documents
” means the U.S. Security Agreement, the WES Stock Pledge Documents and all other documents, instruments and agreements executed by or on behalf of any Loan Party to effect a pledge of Equity Interests in any
Foreign Subsidiary to the Administrative Agent.
“
Foreign Subsidiary
Secured Obligations
” means all unpaid principal of, accrued and unpaid interest and fees and reimbursement obligations, and all expenses, reimbursements, indemnities and other obligations under or with respect to, any
loans
,
letters of credit
,
acceptances
,
guarantees
,
overdraft facilities
, other credit extensions or accommodations or similar obligations owing by any Foreign Subsidiary pursuant to the Loan Documents to any Lender or any office, branch or Affiliate of any Lender
(each a “
Foreign Obligation Provider
”) and including interest and fees that accrue after the commencement by or against any Foreign Subsidiary of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“
Fourth Amendment
”
means that certain Fourth Amendment to the Credit Agreement, dated as of August 24, 2018, by and among the Borrowers, the Administrative Agent and the Lenders party thereto.
“
Fourth Amendment
Consenting Term A-2 Lenders
” means, collectively, the Converting Consenting Term A-2 Lenders and the Non-Converting Consenting Term A-2 Lenders.
“
Fourth Amendment
Effective Date
” has the meaning assigned to such term in the Fourth Amendment.
“
FRB
” means
the Board of Governors of the Federal Reserve System of the United States.
“
Fronting Exposure
”
means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing
Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“
Fund
”
means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“
GAAP
”
means generally accepted accounting principles in the United States set forth in the Accounting Standards Codification issued by Financial Accounting Standards Board, consistently applied and as in effect from time to time.
“
Governmental
Authority
” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“
Guarantee
”
means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “
primary obligor
”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation
of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien);
provided
that the term
Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date. The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“
Guaranties
”
means the Company Guaranty, the Domestic Subsidiary Guaranty and each Foreign Subsidiary Guaranty.
“
Hazardous Materials
”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“
Hedge Bank
”
means any Person that, at the time it enters into a Swap Contract permitted hereunder (or, with respect to Swap Contracts outstanding on the Closing Date, on the Closing Date) is a Lender or an Affiliate of a Lender, in its capacity as a party to
such Swap Contract.
“
Historical Financial
Statements
” means (a) the audited consolidated balance sheets and related consolidated statements of operations, cash flows and shareholders’ equity of (x) the Company for the three most recently completed fiscal years ended at
least 60 days before the Closing Date and (y) WP Mustang Holdings LLC for the fiscal year ending December 31, 2014 and each subsequent fiscal year ended at least 125 days before the Closing Date, in each case, accompanied by an unqualified report
thereon by their respective independent registered public accountants and (b) the unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Company and WP Mustang Holdings LLC for each fiscal quarter
(other than the last fiscal quarter of a fiscal year) of the Company and WP Mustang Holdings LLC ended after December 31, 2014 and at least 60 days (or 40 days in the case of the Company) before the Closing Date, all of which financial statements
shall be prepared in accordance with GAAP, subject in the case of the unaudited financial statements to year-end audit adjustments and the absence of footnotes.
“
Honor Date
”
has the meaning specified in
Section 2.03(c)(i)
.
“
Immaterial Subsidiary
”
means any Subsidiary designated as such by the Company by notice to the Administrative Agent;
provided
(i) that all Immaterial Subsidiaries may not, as of
the end of each fiscal quarter of the Company and calculated at the time of each quarterly Compliance Certificate, together with their respective subsidiaries, account for more than 10% of the Consolidated Total Assets, 10% of the Consolidated
Net Worth or 10% of the consolidated revenues of the Company for the period of four consecutive fiscal quarters immediately preceding such date and (ii) that any Subsidiary that, together with its respective Subsidiaries, accounts for more than
5% of the Consolidated Total Assets, Consolidated Net Worth or consolidated revenues of the Company for such period shall not be deemed to be an Immaterial Subsidiary for the purposes of
Section 8.01
.
“
Incremental Amount
”
means, at any time, the sum of the aggregate principal amount of (a) Incremental Facilities incurred at or prior to such time and (b) Incremental Equivalent Debt incurred at or prior to such time.
“
Incremental Cap
”
means, after giving effect to the effectiveness of any proposed Incremental Facility (including any unused amount thereof, in the case of any proposed Incremental Revolving Credit Facility or Incremental Revolving Increase), after the Fourth
Amendment Effective Date, an amount not to exceed (I) the greater of (x) $375,000,000 and (y) 50% of Consolidated EBITDA for the Test Period most recently then ended
calculated on a Pro Forma Basis
plus
(II) the aggregate amount of
all voluntary prepayments and repurchases of Term Loans (other than voluntary prepayments and repurchases of Incremental Term Loans incurred pursuant to clause (III) below) and voluntary reductions of commitments under the Revolving Credit
Facility, in each case made prior to the date of any such incurrence (other than prepayments, repurchases and commitment reductions made with the proceeds of Indebtedness under this Agreement or any other long-term Indebtedness),
plus
(III) the maximum aggregate principal amount (if any) of the Incremental Facilities that could be established or incurred without causing the
Consolidated Secured Leverage Ratio as of the last day of the most recently ended Test Period,
calculated
on a Pro Forma Basis after giving effect to the incurrence of such additional amount, any acquisition or Investment consummated in connection therewith and all other appropriate pro forma adjustments (but without netting any cash
proceeds from such incurrence), to exceed 4.00:1.00 (treating any proposed Incremental Revolving Credit Facility or proposed Incremental Revolving Increase as fully drawn
, and such proposed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without any further testing under this definition
),
minus
(IV) the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt theretofore incurred in reliance on clauses (I) (only
to the extent incurred after the Fourth Amendment Effective Date)and (II) above;
provided
that
(1) Incremental Facilities may be
established or
incurred under one or more of clauses (I), (II) and/or (III) above as selected by the Borrower in its sole discretion, and (2) if any Incremental Facilities are to be
established or
incurred under both clauses (I) or (II) and (III) above in connection with a single transaction or series of related but substantially
concurrent transactions, then the maximum amount available of Incremental Facilities (or portion of Incremental Facilities) to be
established or
incurred under clause (III) shall first be determined by calculating the
establishment or
incurrence under such clause (III) without giving effect to any Incremental Facilities (or portion of any Incremental Facilities)
established or
incurred (or to be
established or
incurred) under clause (I) and/or clause (II), and after such maximum amount under clause (III) has been determined, the amount of Incremental
Facilities (or portion of Incremental Facilities)
established or
incurred (or to be
established or
incurred) under clause (I) and/or clause (II) shall be determined.
“
Incremental Effective
Date
” has the meaning assigned to such term in
Section 2.17(a)
.
“
Incremental
Equivalent Debt
” means Indebtedness incurred by one or more of the Loan Parties in the form of one or more series of senior secured first lien notes (but not term loans), junior lien term loans or notes, subordinated term loans or
notes or senior unsecured term loans or notes, or any bridge facility;
provided
that (i) the maturity date of such Incremental Equivalent Debt will be no
earlier than the Maturity Date of the Term B-
2
3
Facility, (ii) the Weighted Average Life to Maturity of such Incremental Equivalent Debt may not be shorter than the remaining Weighted Average
Life to Maturity of the Term B-
2
3
Facility, (iii) none of the obligors or guarantors with respect to such Indebtedness shall be a Person that is not a Loan Party, (iv) the terms (excluding any
pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption terms) of such Indebtedness, taken as a whole, shall not be materially less favorable (taken as a whole) to the Loan Parties than those applicable to the Term
B-
2
3
Loans, except for covenants or other provisions applicable only to periods after the Maturity Date or earlier repayment in full of the Term B-
2
3
Loans;
provided
that such Indebtedness may contain additional or more restrictive financial covenants than those applicable to the Term B-
2
3
Loans so long as such covenants are added for the benefit of the Lenders hereunder and (v) such Indebtedness shall be either (A) solely in the case of debt securities, secured by the Collateral
on a
pari passu
basis with the Obligations and shall not be secured by any property or assets of the Loan Parties or any Subsidiary other
than Collateral, and a representative acting on behalf of the holders of such Indebtedness shall have become party to a customary intercreditor agreement reasonably satisfactory to the Company and the Administrative Agent reflecting the
pari passu
status of the Liens securing such Indebtedness or (B) secured by the Collateral on a junior basis with the Obligations and shall not be
secured by any property or assets of the Loan Parties or any Subsidiary other than Collateral, and a representative acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of a
customary intercreditor agreement reasonably satisfactory to the Company and the Administrative Agent reflecting the second (or more junior) lien status of the Liens securing such Indebtedness.
“
Incremental
Facilities
” has the meaning specified in
Section 2.17(a)
.
“
Incremental Revolving
Credit Commitment
” means any revolving credit commitment under an Incremental Revolving Credit Facility.
“
Incremental Revolving
Credit Facility
” has the meaning assigned to such term in
Section 2.17(a)
.
“
Incremental Revolving
Credit Loans
” means any revolving loans made under an Incremental Revolving Credit Facility.
“
Incremental Revolving
Increase
” has the meaning assigned to such term in
Section 2.17(a)
.
“
Incremental Term A
Facility
” means an Incremental Term Facility in the form of a term loan A facility designated by the Company in writing to the Administrative Agent as an Incremental Term A Facility.
“
Incremental Term A-3
Commitment
” has the meaning assigned to such term in the Fourth Amendment.
“
Incremental Term A-3
Lender
” has the meaning assigned to such term in the Fourth Amendment.
“
Incremental Term A-3
Loans
” has the meaning assigned to such term in the Fourth Amendment.
“
Incremental Term B
Facility
” means an Incremental Term Facility other than an Incremental Term A Facility.
“
Incremental Term B-2
Commitment
” has the meaning assigned to such term in the Third Amendment.
“
Incremental Term B-2
Lender
” has the meaning assigned to such term in the Third Amendment.
“
Incremental Term B-2
Loans
” has the meaning assigned to such term in the Third Amendment.
“Incremental Term B-3 Commitment” has the meaning assigned to such term in the Sixth Amendment.
“Incremental Term B-3 Lender” has the meaning assigned to such term in the Sixth Amendment.
“Incremental Term B-3 Loans” has the meaning assigned to such term in the Sixth Amendment.
“
Incremental Term
Facility
” has the meaning assigned to such term in
Section 2.17(a)
.
“
Incremental Term
Increase
” has the meaning assigned to such term in
Section 2.17(a)
.
“
Incremental Term Loan
Commitment
” means any term loan commitment under an Incremental Term Facility.
“
Incremental Term
Loans
” means any term loans made under an Incremental Term Facility.
“
Indebtedness
”
means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)
all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)
all direct or contingent obligations of such Person arising under letters of credit, bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c)
net obligations of such Person under any Swap Contract;
(d)
all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each
case, maturing within 365 days after the incurrence thereof which are not overdue for a period of more than 180 days and, if overdue for more than 180 days, as to which a dispute exists and adequate reserves in accordance with GAAP have been
established on the books of such Person);
(e)
indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person;
(f)
capital leases, Synthetic Lease Obligations and Securitization Transactions, and liabilities in respect of Permitted Factoring Transactions;
(g)
all obligations of such Person in respect of Disqualified Stock; and
(h)
all Guarantees of such Person in respect of any of the foregoing;
provided
that the term “Indebtedness” shall not
include, for the avoidance of doubt, any Equity Interests (other than Disqualified Stock) issued by Company;
provided further
,
that the term “Indebtedness” shall not include any
indebtedness (including
obligations under the 2023 Senior Notes
)
to the extent
(i)
of any funds that are irrevocably deposited with the trustee
or
agent or otherwise for the benefit of the holders thereof or (ii) an irrevocable and unconditional notice of redemption, offer to purchase or notice of prepayment under the instrument governing such indebtedness has been delivered, in each
case,
in connection with the redemption, tender, defeasance or other early payment of
the 2023 Senior Notes.
such indebtedness, either in whole or in part.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any of any
other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, unless such Indebtedness is
expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease, Synthetic Lease
Obligation or Securitization Transaction as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) above shall (unless
such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value of the property encumbered thereby as determined by such Person in good
faith.
“
Indemnified Taxes
”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“
Indemnitees
”
has the meaning specified in
Section 10.04(b)
.
“
Information
”
has the meaning specified in
Section 10.07
.
“
Interest Payment Date
”
means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date;
provided
,
however
, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning
of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan or Swing Line Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made
(with Swing Line Loans being deemed made under the Revolving Credit Facility for purposes of this definition); (c) with respect to the Term A-1 Loans and the Term B-1 Loans, the First Amendment Effective Date
and
;
(d) with respect to the Revolving Credit Loans and the Term A-2 Loans, the Fourth Amendment Effective Date
; and (e) with respect to the Term B-3 Loans, the Sixth Amendment Effective Date
.
“
Interest Period
”
means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on (i) with respect to each Eurocurrency Rate Loan under the
Revolving Credit Facility, the date one week or one, two, three or six months thereafter and (ii) with respect to each Eurocurrency Rate Loan under the Term Facilities, the date one, two, three or six months thereafter, in each case, as selected
by the Company in its Loan Notice or such other period that is twelve months or less requested by a Borrower and consented to by all the Lenders under the applicable Facility, subject to availability;
provided
that:
(i)
any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii)
any Interest Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;
(iii)
no Interest Period shall extend beyond the Maturity Date;
(iv)
all Term A-2 Loans made pursuant to
Section 2.01(b),
including those converted from Converted Term A-1 Loans, shall have the same initial Interest Period as in effect for the Converted Term A-1 Loans on the First Amendment Effective Date
;
(v)
all Term B-2 Loans made pursuant to
Section 2.01(e),
including those converted from Converted Term B-1 Loans, shall have the same initial Interest Period as in effect for the Converted Term B-1 Loans on the First Amendment Effective Date;
(vi)
all Incremental Term B-2 Loans shall have the initial Interest Period(s)
set forth in Section 3(b) of the Third Amendment;
(vii)
all Term A-3 Loans made pursuant to
Section 2.01(c)
, including those converted from Converted Term A-2 Loans, shall have the same initial Interest Period as in effect for the Converted Term A-2 Loans on the Fourth
Amendment Effective Date;
(viii)
all Incremental Term A-3 Loans shall have the initial Interest Period(s)
set forth in Section 3(b) of the Fourth Amendment;
(ix)
all Tranche A 2019 Incremental Term A-3 Loans shall have the initial Interest Period(s) set forth in Section 3(b) of the Fifth Amendment;
and
(x)
all Tranche B 2019 Incremental Term A-3 Loans shall have the initial Interest Period(s)
set forth in Section 4(b) of the Fifth Amendment
.
;
(xi)
all Term B-3 Loans made pursuant to Section 2.01(f), including those
converted from Converted Term B-2 Loans, shall have the same initial Interest Period as in effect for the Converted Term B-2 Loans on the Sixth Amendment Effective Date; and
(xii)
all Incremental Term B-3 Loans shall have the initial Interest Period(s)
set forth in Section 3(b) of the Sixth Amendment.
“
Internally Generated
Cash
” means, with respect to any period, any cash of the Company or any Subsidiary generated during such period, excluding net cash proceeds from an incurrence of Indebtedness (other than Indebtedness incurred under the Revolving
Credit Facility), an issuance of Equity Interests or a capital contribution, in each case, except to the extent such proceeds are included as income in calculating Consolidated Net Income for such period.
“
Investment
” means, as to any
Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or Indebtedness or other securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or
(c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets of another Person that constitute a business unit, line of
business or division of such Person. The amount, as of any date of determination, of (a) any Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date, but without any adjustment for
write-downs or write-offs (including as a result of forgiveness of any portion thereof) with respect to such loan or advance after the date thereof, (b) any Investment in the form of a Guarantee shall be equal to the stated or determinable amount
of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined in good faith by a Responsible
Officer, (c) any Investment in the form of a transfer of Equity Interests or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair market value (as determined
in good faith by a Responsible Officer) of such Equity Interests or other property as of the time of the transfer,
minus
any payments actually received
by such investor representing a return of capital of, or in the case of Investments in the form of a transfer of Equity Interests, dividends or other distributions on account of (to the extent such payments do not exceed, in the aggregate, the
original amount of such Investment), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (d) any Investment
(other than any Investment referred to in clause (a), (b) or (c) above) by the specified Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith),
plus
(i) the cost of all additions thereto and
minus
(ii) the amount of any portion of
such Investment that has been repaid to the investor in cash as a repayment of principal or a return of capital, and of any cash payments actually received by such investor representing dividends or other distributions on account of (to the
extent such payments do not exceed, in the aggregate, the original amount of such Investment), but without any other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after
the date of such Investment.
For purposes of covenant compliance, if an Investment involves the acquisition of more than one Person, the amount
of such Investment shall be allocated among the acquired Persons in accordance with GAAP;
provided
that pending the final determination of the amounts to
be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by a Responsible Officer.
“
IP Rights
”
has the meaning specified in
Section 5.18
.
“
IRS
” means
the United States Internal Revenue Service.
“
ISP
”
means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“
Issuer Documents
”
means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Company (or any Subsidiary) or in favor of the L/C Issuer and relating to such
Letter of Credit.
“
Joint Lead Arrangers
”
has the meaning specified in the introductory paragraph hereof. On and after the Tranche A Fifth Amendment Effective Date, the Joint Lead Arrangers shall include the Fifth Amendment Joint Lead Arrangers.
On and after the Sixth Amendment Effective Date, the Joint Lead Arrangers shall include the Sixth Amendment Joint Lead
Arrangers.
“
Laws
”
means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, in each case whether or not having the force of law.
“
L/C Advance
”
means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Credit Percentage. All L/C Advances shall be denominated in Dollars.
“
L/C Borrowing
”
means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing. All L/C Borrowings shall be denominated in Dollars.
“
L/C Credit Extension
”
means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“
L/C Issuer
”
means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“
L/C Obligations
”
means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit
plus
the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.09
. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“
Lender
”
has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender. The term “Lender” shall include any Designated Lender.
“
Lending Office
”
means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent,
which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
“
Letter of Credit
”
means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.
“
Letter of Credit
Application
” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“
Letter of Credit
Expiration Date
” means the day that is seven days prior to the Maturity Date in respect of the Revolving Credit Facility then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“
Letter of Credit Fee
”
has the meaning specified in
Section 2.03(i)
.
“
Letter of Credit
Sublimit
” means an amount equal to $250,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“
LIBOR Quoted Currency
”
means each of the following currencies: Dollars; Euro; and Sterling; in each case as long as there is a published LIBOR rate with respect thereto.
“
LIBOR Screen Rate
”
means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“
LIBOR Successor Rate
”
has the meaning specified in
Section 3.03(c)
.
“
LIBOR Successor Rate
Conforming Changes
” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and
other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially
consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate
exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower).
“
Lien
”
means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement
in the
nature of a security interest
, encumbrance, lien (statutory or other), charge, or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“
Limited Condition
Transaction
” means (i) any Permitted Acquisition or other permitted acquisition or Investment (including by way of merger or amalgamation) whose consummation is not conditioned on the availability of, or on obtaining, third party
financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.
“
Limited Guarantor
Foreign Subsidiary
” means each Foreign Subsidiary that is a Subsidiary of WES and that has executed a Limited Guaranty.
“
Limited Guaranty
”
means a Foreign Subsidiary Guaranty (which, in the case of a Limited Guaranty of any WES Entity, shall be a guarantee only of the Obligations of WEX International Holdings) recourse to the guarantor under which is limited to a maximum of
$350,000,000 or, in the case of a Foreign Subsidiary Guaranty by a WES Entity, the least of (x) the aggregate outstanding Obligations of WEX International Holdings, (y) $350,000,000 (or such lower amount as may be designated in accordance with
Section 1.03(a)
,
(b)
, and
(c)
of the Agreed Credit Support Principles if such Foreign Subsidiary Guaranty is also a Reduced Guaranty) and (z) the aggregate amount of Investments in the WES Entities made on or
after August 22, 2014 by the Non-WES Entities, less the total amount of returns on such Investments actually received in cash or Cash Equivalents on or after August 22, 2014 by the Non-WES Entities.
“LLC Division” means the statutory division of any limited liability company into two or more limited liability companies pursuant to Section 18-217 of the Delaware Limited Liability Company
Act or a comparable provision of any other requirement of Law.
“
Loan
”
means an extension of credit by a Lender to a Borrower under
Article II
in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.
“
Loan Documents
”
means this Agreement, each Designated Borrower Request and Assumption Agreement, each Note, each Issuer Document, the Fee Letter, the Guaranties, the Collateral Documents, each Additional Credit Extension Amendment and any amendments of and
joinders to any Loan Document that are deemed pursuant to their terms to be Loan Documents for purposes hereof.
“
Loan Notice
”
means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of Eurocurrency Rate Loans, pursuant to
Section 2.02(a)
, which shall be substantially in the form of
Exhibit A
or such other form as may be approved by the
Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.
“
Loan Parties
”
means, collectively, the Company, each Subsidiary Guarantor, and each Designated Borrower.
“
Material Acquisition
”
has the meaning specified in the definition of “Consolidated EBITDA.”
“
Material Adverse
Effect
” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, or financial condition of the Company or the Company and its Subsidiaries taken as a whole; (b) a material
impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document or the ability of the Loan Parties, taken as whole, to perform their respective obligations under the Loan Documents; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party or the Specified Designated Borrower of any Loan Document to which it is a party.
“
Material Bank
Regulated Subsidiary
” means (i) WEX Bank and (ii) any other Bank Regulated Subsidiary that is a Material Subsidiary.
“
Material Disposition
”
has the meaning specified in the definition of “Consolidated EBITDA.”
“
Material Real
Property
”
shall mean
means
any fee owned Real Property located in the United States owned by a Domestic Loan Party and having a fair market value (on a per-property basis and
as determined in good faith by the Company) equal to or greater than $5,000,000 as of (a) the Closing Date, for Real Property then owned, (b) the date of acquisition, for Real Property acquired after the Closing Date by any Domestic Loan Party or
(c) the date that any Person first becomes a Domestic Subsidiary (other than an Excluded Domestic Guaranty Subsidiary) or remains a Domestic Subsidiary but ceases to be an Excluded Domestic Guaranty Subsidiary after the Closing Date, for Real
Property then owned by such Domestic Subsidiary.
“
Material Subsidiary
”
means any Subsidiary of the Company other than an Immaterial Subsidiary.
“
Maturity Date
”
means (a) with respect to the Revolving Credit Facility, July 1, 2023 (the “
Revolving Maturity Date
”);
provided
that if,
(i)
as of the Notes Springing Maturity Date, the
Company has not repaid, redeemed, discharged or defeased the 2023 Senior Notes, irrevocably deposited funds with the trustee in connection with the redemption, tender, defeasance or other early payment of the 2023 Senior Notes or extended the
maturity (through a refinancing or otherwise) of the 2023 Senior Notes to a date that is at least 91 days after the Revolving Maturity Date, then the Revolving Maturity Date shall be the Notes Springing Maturity Date
and (ii) as of the Term Loan Springing Maturity Date, the Revolving Maturity Date has not been adjusted pursuant to clause (i) and the Company has not
repaid (or purchased or cancelled) the Term B-2 Loans or extended the maturity (through a refinancing or otherwise) of the Term B-2 Loans to a date that is at least 91 days after the Revolving Maturity Date, then the Revolving Maturity Date
shall be the Term Loan Springing Maturity Date
, (b) with respect to the Term A-3 Facility, July 1, 2023 (the “
Term A Maturity Date
”);
provided
that if,
(i)
as of the Notes Springing Maturity Date, the Company has not repaid, redeemed, discharged or defeased the 2023 Senior Notes, irrevocably deposited funds with the trustee in connection with the redemption, tender, defeasance or other early
payment of the 2023 Senior Notes or extended the maturity (through a refinancing or otherwise) of the 2023 Senior Notes to a date that is at least 91 days after the Term A Maturity Date, then the Term A Maturity Date shall be the Notes Springing
Maturity Date
and (ii) as of the Term Loan Springing Maturity Date, the Term A Maturity Date has not been adjusted pursuant to
clause (i) and, the Company has not repaid (or purchased or cancelled) the Term B-2 Loans or extended the maturity (through a refinancing or otherwise) of the Term B-2 Loans to a date that is at least 91 days after the Term A Maturity Date,
then the Term A Maturity Date shall be the Term Loan Springing Maturity Date
, (c) with respect to the Term B-
2
3
Facility,
July 1, 2023
May 17, 2026
and (d) with respect to any additional Loans or Commitments pursuant to
Section 2.17
,
2.18
or
2.19
, the maturity date specified in the Additional Credit Extension Amendment related thereto;
provided
,
however
, that, in each case, if such date is not a
Business Day, the Maturity Date shall be the next preceding Business Day.
“
MLPFS
” has
the meaning specified in the introductory paragraph hereto.
“
Moody’s
”
means Moody’s Investors Service, Inc. and any successor thereto.
“
Mortgage
”
means each of the mortgages, deeds of trust, trust deeds and deeds to secure debt or such equivalent documents covering the Mortgaged Property (together with fixture filings and Assignments of Leases and Rents referred to therein) and hereafter
entered into and executed and delivered by one or more of the Loan Parties to the Administrative Agent, in each case, in form and substance reasonably acceptable to the Administrative Agent (with such changes as may be satisfactory to the
Administrative Agent and its counsel to account for local law matters).
“
Mortgage Policy
”
has the meaning specified in
Section 6.13(c)(ii)
.
“
Mortgaged Property
”
shall mean
means
all Material Real Property as to which, pursuant to
Section 6.13(c
), or
otherwise, the Administrative Agent, for the benefit of the Secured Parties, shall be granted a Lien, pursuant to the Mortgages.
“
MUFG
” has
the meaning specified in the introductory paragraph hereto.
“
Multiemployer Plan
”
means any employee benefit plan described in Section 4001(a)(3) of ERISA, to which a Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.
“
Multiple Employer
Plan
” means a Plan which has two or more contributing sponsors (including a Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“
Net Cash Proceeds
”
means:
(a)
with respect to any Disposition by any Loan Party or any of its Subsidiaries, or with respect to any Casualty Event relating to any property of any Loan Party or any of its
Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the amount of all payments that are permitted hereunder and are made by the Company and its Subsidiaries as a result of such event to repay Indebtedness that is
secured by the applicable asset or that is subject to mandatory prepayment in connection with such transaction or event (other than Indebtedness under the Loan Documents), (B) the sum of fees and out-of-pocket expenses (including attorney’s fees,
investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses and brokerage,
consultant, accountant and other customary fees) incurred by the Company and any Subsidiary in connection with such transaction or event, (C) the pro rata portion of net cash proceeds thereof (calculated without regard to this clause (C))
attributable to minority interests and not available for distribution to or for the account of the Company or its Subsidiaries as a result thereof, (D) the amount of any liabilities directly associated with such asset and retained by the Company
or any Subsidiary, (E) the amount of all taxes paid (or reasonably estimated to be payable), (F) the amount of dividends and other restricted payments that a Subsidiary may make pursuant to
Section 7.06(a)(ii)
as a result of such event and (G) the amount of any reserves established by the Company and its Subsidiaries to fund contingent liabilities reasonably estimated to be payable, that are
directly attributable to such event;
provided
that, if the amount of any estimated taxes pursuant to subclause (E) exceeds the amount of taxes actually
required to be paid in cash in respect of such Disposition or Casualty Event, the aggregate amount of such excess shall constitute Net Cash Proceeds; and
(b)
with respect to the incurrence or issuance of any Indebtedness by the Company or any of its Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received
in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by the Company or such Subsidiary in connection therewith.
“
Non-Consenting Lender
”
has the meaning specified in
Section 10.13
.
“
Non-Converting
Consenting Term A-2 Lender
” means a Term A-2 Lender that has elected to be a “Non-Converting Consenting Term A-2 Lender” on its signature page to the Fourth Amendment.
“
Non-Converting
Consenting Term B-1 Lender
” means a Term B-1 Lender that has elected to be a “Non-Converting Consenting Term B-1 Lender” on its signature page to the First Amendment.
“Non-Converting Consenting Term B-2 Lender” means a Term B-2 Lender that has elected to be a “Non-Converting Consenting Term B-2 Lender” on its signature page to the Sixth Amendment.
“
Non-Extension Notice
Date
” has the meaning specified in
Section 2.03(b)(iii)
.
“
Non-WES Entity
”
means the Company or any direct or indirect Subsidiary thereof that is not a WES Entity.
“
Note
”
means a Term Note or a Revolving Credit Note, as the context may require.
“
Notes Springing
Maturity Date
” means August 1, 2022.
“
Notice of Loan
Prepayment
” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of
Exhibit O
or such other form
as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.
“
Obligations
”
means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party or the Specified Designated Borrower arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Specified Cash
Management Agreement or Specified Hedge Agreement, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or any Affiliate of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding;
provided
that the Obligations of any Loan Party shall exclude any Excluded Swap Obligation of such Loan Party.
“
OCC
” means
the United States Office of the Comptroller of the Currency.
“
OFAC
”
means the Office of Foreign Assets Control of the United States Department of the Treasury.
“
Offshore Associate
”
means an “Associate” within the meaning of the Australian
Income Tax Assessment Act of 1936
(Cth) that is either (a) a non-resident and is
not or would not become a lender under this Agreement in carrying on a business in Australia at or through any permanent establishment of it in Australia; or (b) a resident of Australia and is or would become a lender under this Agreement in
carrying on a business in a country outside Australia at or through any permanent establishment of it in that country.
“
OID
” has
the meaning specified in
Section 2.05(c)
.
“
Operating
Indebtedness
” means, as of any date of determination, all unsecured Indebtedness incurred in the ordinary course of the banking operations of any Bank Regulated Subsidiary which is includable as a liability on the consolidated
balance sheet of such Bank Regulated Subsidiary and its consolidated subsidiaries at such date, determined on a consolidated basis in accordance with GAAP.
“
Operating Interest
Expense
” means, for any period, the sum for all Bank Regulated Subsidiaries and their respective consolidated subsidiaries (determined in accordance with GAAP), of all interest in respect of Operating Indebtedness (including,
without limitation, the interest component of any payments in respect of capital lease obligations but excluding any capitalized financing costs) accrued during such period (whether or not actually paid during such period).
“
Organization
Documents
” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictions); (b) with respect to
any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictions); and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection
with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“
Other Connection
Taxes
” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient
having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
“
Other Taxes
”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to
Section 3.06
).
“
Outstanding Amount
”
means (a) with respect to Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the Dollar Equivalent amount of aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of
Term Loans, Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed
Amounts.
“
Overnight Rate
”
means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be,
in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in
an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major
banks in such interbank market.
“
Parallel Debt
”
has the meaning specified in
Section 10.23(b)
.
“
Part 21A Certificate
”
means in respect of each company incorporated in the United Kingdom whose shares are the subject of a Lien under the Collateral Documents (a “
Charged Company
”),
either:
(a)
a certificate of a Responsible Officer of the Company certifying that:
(i)
the Company and each of its Subsidiaries have complied within the relevant timeframe with any notice it has received pursuant to Part 21A of the United Kingdom Companies Act
2006 from that Charged Company; and
(ii)
no "warning notice" or "restrictions notice" (in each case as defined in Schedule 1B of the United Kingdom Companies Act 2006) has been issued in respect of those shares,
together with a copy of the “PSC register” (within the meaning of section 790C(10)
of the United Kingdom Companies Act 2006) of that Charged Company which is certified by a Responsible Officer of the Company to be correct, complete and not amended or superseded as at the date of such certificate; or
(b)
a certificate of a Responsible Officer of the Company certifying that such Charged Company is not required to comply with Part 21A of the United Kingdom Companies Act 2006.
“
Participant
”
has the meaning specified in
Section 10.06(d)
.
“
Participant Register
”
has the meaning specified in
Section 10.06(d)
.
“
Participating Member
State
” means each state so described in any EMU Legislation.
“
PBGC
”
means the Pension Benefit Guaranty Corporation.
“
Pension Act
”
means the Pension Protection Act of 2006.
“
Pension Funding Rules
”
means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act,
Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“
Pension Plan
”
means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Borrower or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the
minimum funding standards under Section 412 of the Code.
“
Perfection
Certificate
”
shall mean
means
a certificate in the form of
Exhibit J
or any other
form approved by the Administrative Agent, as the same shall be supplemented from time to time.
“
Permitted Acquisition
”
means (a) any Acquisition by the Company or any Subsidiary;
provided
that (i) immediately after giving effect to such Acquisition, (x) no Event of Default
or Default under
Sections 8.01(a)
or
(f)
shall have occurred
and be continuing and (y) the Consolidated Interest Coverage Ratio and Consolidated Leverage Ratio for the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to
Section 6.01(a)
or
(b)
(determined on a Pro Forma Basis as if such
Acquisition had occurred on the first day of such period) shall be not less than, or greater than, the ratios required by
Sections 7.11(a)
and
(b)
, respectively, and the Company shall be in compliance with
Section 7.07
,
(ii) promptly upon giving effect to such Acquisition, the Company complies with
Section 6.13
and (iii) either (X) if such Acquisition is pursuant to
clause (a) of the definition of “Acquisition,” then, immediately following such Acquisition, the Person acquired in such Acquisition is a consolidated Subsidiary or (Y) if such acquisition is pursuant to clause (b) of the definition of
“Acquisition,” then, immediately following such Acquisition, the assets, division or line of business acquired in such Acquisition are owned by the Company or a consolidated Subsidiary, and (b) the EFS Acquisition.
“
Permitted
Encumbrances
” means (i) Liens, encumbrances and other matters disclosed on the Mortgage Policies delivered in connection with Mortgages delivered hereunder, (ii)
easements, zoning restrictions, rights-of-way, restrictions on use and other encumbrances on real estate and defects and irregularities in the title thereto (but, with respect to Mortgaged Property, limited to minor
defects and irregularities in the title thereto)
, or any other matter of record, landlord’s or lessor’s Liens under leases to which any Domestic Loan Party is a party, and other Liens none of which in the opinion of the respective
Domestic Loan Party interferes materially with the use of real estate of the Domestic Loan Parties taken as a whole in the ordinary conduct of business, which encumbrances, defects and Liens do not individually or in the aggregate have a Material
Adverse Effect on (x) if such real estate is subject to a Mortgage, the value of said real estate or (y) the business of the Loan Parties and the Restricted Subsidiaries on a consolidated basis, and (iii) the Liens permitted under and described
in clauses
(a)
,
(b)
,
(c)
,
(d)
,
(g)
,
(h)
and
(j)
of
Section 7.01
.
“
Permitted Factoring
Transaction
” means any sale or other transfer by the Company or any of its Subsidiaries of Factorable Receivables, which sale or transfer does not involve the creation of any recourse obligation in respect thereof on the part of
the Company or any of its Subsidiaries (other than with respect to matters of title to, and the character of (other than the collectability) of, the Factorable Receivables so sold or transferred), other than recourse obligations in an outstanding
amount not exceeding $10,000,000 at any time.
“
Permitted Junior
Priority Refinancing Debt
” means any Credit Agreement Refinancing Indebtedness in the form of one or more series of junior lien secured notes or junior lien secured loans;
provided
that (i) such Indebtedness is secured by the Collateral on a junior lien, subordinated basis to the Obligations and the obligations in respect of any Permitted Pari Passu Refinancing Debt, (ii) the
security agreements relating to such Indebtedness are substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent) and (iii) a Senior Representative acting on behalf of the
holders of such Indebtedness shall have become party to a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the Company.
“
Permitted Pari Passu
Refinancing Debt
” means any Credit Agreement Refinancing Indebtedness in the form of one or more series of senior secured notes;
provided
that (i) such Indebtedness is secured by the Collateral on a
pari passu
basis with the Obligations, (ii) the security agreements relating to
such Indebtedness are substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent) and (iii) a Senior Representative acting on behalf of the holders of such Indebtedness
shall have become party to one or more customary intercreditor agreements in form and substance reasonably acceptable to the Administrative Agent and the Company.
“
Permitted Refinancing
Indebtedness
” means any Indebtedness of any Loan Party or any of its Subsidiaries (other than any Bank Regulated Subsidiary and its respective Subsidiaries) issued in exchange for, or the net proceeds of which are used to extend,
renew, refund, refinance, replace, defease or discharge other Indebtedness of such Loan Party or any of its Subsidiaries (other than any Bank Regulated Subsidiary and its respective Subsidiaries);
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 Indebtedness extended, renewed, refunded, refinanced, replaced, defeased or discharged (the “
Refinanced Indebtedness
”) (plus all accrued interest on
the Refinanced Indebtedness and the amount of all fees, commissions, discounts and expenses, including premiums, incurred in connection therewith);
(b)
either (x) such Permitted Refinancing Indebtedness has a final maturity date no earlier than the final maturity date of, and has a Weighted Average Life to Maturity equal to
or greater than the Weighted Average Life to Maturity of, the Refinanced Indebtedness or (y) all scheduled payments on or in respect of such Permitted Refinancing Indebtedness (other than interest payments) shall be at least 91 days following the
latest Maturity Date hereunder;
(c)
if the Refinanced Indebtedness is subordinated in right of payment to the Loans, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Loan on
terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Indebtedness;
(d)
such Indebtedness is incurred:
(i)
by a Loan Party or by a Subsidiary (other than a Bank Regulated Subsidiary and its
respective Subsidiaries) who is the obligor on the Refinanced Indebtedness;
(ii)
by a Loan Party if the obligor on the Refinanced Indebtedness is a Loan Party or a
Subsidiary Guarantor; and
(e)
such Indebtedness is only secured if and to the extent and with the priority the Refinanced Indebtedness is secured, and if such Refinanced Indebtedness is subject to an
intercreditor agreement, the holders of such Permitted Refinancing Indebtedness or their representative on their behalf shall become party to such intercreditor agreement.
“
Permitted
Restructuring Transactions
” means, collectively, any transfers, dividends, distributions, intercompany Dispositions or Investments and related Indebtedness (collectively for purposes of this definition, “transfers”) either (1)
undertaken concurrently with, or within the 36-month period following, the consummation of any Material Acquisition, in order to achieve synergies or tax efficiencies related to such Material Acquisition and integration thereof (as reasonably
determined by the Borrower), or (2) undertaken in connection with corporate reorganizations in the ordinary course of business consisting of (x) transfers of any assets of any Foreign Subsidiary to any other Foreign Subsidiaries (direct or
indirect), (y) transfers of the Equity Interests of any Foreign Subsidiary and any intercompany loans held by any Loan Party with respect to which such Foreign Subsidiary is the obligor to any other Foreign Subsidiaries (direct or indirect) or
(z) the conversion to Equity Interests or the forgiveness of Indebtedness owed by a Foreign Subsidiary to any Loan Party;
provided
that (i) in the case of
each of clauses (1) and (2), after giving effect to such Permitted Restructuring Transaction the security interests of the Secured Parties in the Collateral, taken as a whole, are not materially and adversely impaired and (ii) at the time of such
Permitted Restructuring Transaction, no Default or Event of Default has occurred and is continuing or would result therefrom.
“
Permitted
Securitization Entity
” means any entity that, (i) except to the extent that Securitization Transactions in the relevant jurisdiction may be effected by a sale or transfer of the applicable Securitization Assets to a Person other
than a wholly-owned Subsidiary of the Company, is directly or indirectly wholly-owned by the Company, (ii) is formed and operated solely for purposes of a Permitted Securitization Transaction, (iii) is “bankruptcy remote” (or, if applicable,
“insolvency remote”), (iv) has organizational documents which limit the permitted activities of such Permitted Securitization Entity to the acquisition of Securitization Assets from the Company or one or more of its Subsidiaries, the
securitization of such Securitization Assets and activities necessary or incidental to the foregoing, (v) meets the customary requirements for special purpose entities engaged in the securitization of assets operating in the applicable
jurisdiction;
provided
that if no requirements for special purpose entities exist in such jurisdiction, the Company shall so certify to the Administrative
Agent.
“
Permitted
Securitization Transaction
” means the sale, contribution or other transfer by the Company or one or more of its Subsidiaries of Securitization Assets to one or more Permitted Securitization Entities and the related further transfer
or financing of such Securitization Assets (and all of the activities and transactions customarily effected in connection with the foregoing);
provided
that, in each case, (i) such transaction results in a legal “true sale” of receivable under the laws of the applicable jurisdiction and (ii) such transaction is non-recourse to the Company and its Subsidiaries (other than the applicable Permitted
Securitization Entity) under the laws of the applicable jurisdiction, except for Standard Securitization Undertakings.
“
Permitted Tax
Receivable Agreement Prepayment
” means any prepayment made under the Tax Receivable Agreement;
provided
that before and after giving effect
to such prepayment, no Event of Default shall have occurred and be continuing, including, on a Pro Forma Basis, under
Section 7.11
.
“
Permitted Unsecured
Refinancing Debt
” means any Credit Agreement Refinancing Indebtedness in the form of one or more series of senior unsecured notes or senior unsecured loans.
“
Person
”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“
Plan
”
means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Borrower or any ERISA Affiliate or any such Plan to which any Borrower or any ERISA Affiliate is required to
contribute on behalf of any of its employees and not excluded under Section 4 of ERISA.
“
Planned Expenditures
”
has the meaning specified in the definition of Excess Cash Flow.
“
Platform
”
has the meaning specified in
Section 6.02
.
“
Pro
Forma
Basis
” means, for purposes of calculating compliance with any test, financial ratio or financial covenant required by the terms of this Agreement to be made on a Pro Forma Basis, for any period, a basis assuming
that any applicable transaction giving rise to such requirement
and
,
any Material Acquisition or Material Disposition that has been consummated during the applicable period
of measurement or subsequent to such period and prior to or substantially concurrent with the event
for which the calculation is made,
and the following transactions in connection therewith that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event
for which the calculation is made shall be deemed to have occurred as of the first day of the applicable period of measurement in such test, financial ratio or financial covenant: (a) income statement items (whether positive or negative)
attributable to the property or Person subject to any such Material Acquisition or Material Disposition shall be included (in the case of any Material Acquisition) or excluded (in the case of any Material Disposition), (b) any retirement of
Indebtedness, and (c) any Indebtedness incurred or assumed by the Company or any of its Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination and interest on any Indebtedness under a revolving credit facility computed
on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period;
provided
that the foregoing
pro forma adjustments may be applied to any such test, financial ratio or financial covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating
expense reductions, synergies or similar anticipated benefits) that are (x) attributable to such transaction, (y) expected to have a continuing impact on the Company and its Subsidiaries and (z) factually supportable (
provided
that
pro
forma
effect shall only be given to operating expense reductions, synergies or similar anticipated benefits from any Material Acquisition or Material Disposition to the extent that such adjustments and the bases
therefore are set forth in reasonable detail in a certificate of the chief executive officer, chief financial officer, treasurer or controller of the Company delivered to the Administrative Agent and dated the relevant date of determination and
which certifies that all necessary steps for the realization thereof have been taken or the Company reasonably anticipates that all necessary steps for the realization thereof will be taken within twenty-four (24) months (or twelve (12) months in
the case of determining any Applicable Rate with respect to Revolving Credit Loans and Term A-3 Loans) following such Material Acquisition or Material Disposition (it being understood that such operating expense reductions, synergies or similar
anticipated benefits shall be added to Consolidated EBITDA (net of the amount of actual benefits realized from such steps) until fully realized (which, for purposes of determining any Applicable Rate with respect to Revolving Credit Loans and
Term A-3 Loans, shall not extend beyond twenty-four (24) months after such Material Acquisition or Material Disposition);
provided
,
further
, that, for purposes of any calculation of Consolidated EBITDA (i) for only the period ending on or prior to June 30, 2017, “Pro Forma Basis” shall also
include revenues (net of associated expenses), on a “run rate” basis, projected to be realizable in future periods of comparable length, attributable to new customers and new contracts projected by the Company in good faith to be attributed to
such customers and contracts (limited to revenues projected to be realized from new customers and new contracts in connection with the EFS Acquisition), in each case disclosed to the Administrative Agent prior to the Closing Date (without
duplication of any actual revenues relating to such customers and contracts) and (ii) for any period following the Closing Date, at the Company’s election and subject to the consent of the Required Financial Covenant Lenders, “Pro Forma Basis”
shall thereafter also include revenues (net of associated expenses), on a “run rate” basis, projected to be realizable in future periods of comparable length, attributable to new customers and new contracts projected by the Company in good faith
to be attributed to such customers and contracts in connection with any Material Acquisition during the applicable period (without duplication of any actual revenues relating to such customers and contracts) (it being understood that such “run
rate” revenues shall be (x) set forth in reasonable detail in a certificate of the chief executive officer, chief financial officer, treasurer or controller of the Company delivered to the Administrative Agent on or prior to the relevant date of
determination which certifies that such revenues have been projected by the Company in good faith based on and derived from financial information delivered to the Administrative Agent on or prior to such Material Acquisition and (y) added to
Consolidated EBITDA (a) in an aggregate amount not to exceed 25% (or 20% in the case of determining any Applicable Rate with respect to Revolving Credit Loans and Term A-3 Loans) of the Consolidated EBITDA of the Acquired Entity or Business for
such period (prior to giving effect to any adjustment pursuant to this clause (ii)) and (b) for only the periods ending on or prior to the last day of the fourth (4
th
) full fiscal quarter immediately following such Material
Acquisition).
“
Pro Forma Financial
Statements
” means the Company’s unaudited balance sheet and related statement of operations as at and for the twelve months ended March 31, 2016, giving effect to the Transactions, as if the Transactions had occurred as of such
date (in the case of such balance sheet) or at the beginning of such period (in the case of the statement of operations).
“
PTE
” means
a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“
Public Lender
”
has the meaning specified in
Section 6.02
.
“
Purchasing Borrower
Party
” means the Company or any Subsidiary of the Company to whom any Term Loans are assigned pursuant to
Section 10.06(i)
.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning specified in Section 10.28.
“
Qualified Stock
”
means any Equity Interest not constituting Disqualified Stock.
“
Rate Determination
Date
” means two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative
Agent;
provided
that to the extent such market practice is not administratively feasible for the Administrative Agent, such other day as otherwise
reasonably determined by the Administrative Agent).
“
RD
” means
WEX Card Holdings Australia Pty Ltd., an Australian proprietary company.
“
RD Acquisition Sub 1
”
means WEX Australia Holdings Pty Ltd, an Australian proprietary company.
“
RD Entities
”
means RD Acquisition Sub 1 and its Subsidiaries, collectively.
“
Real Property
”
of any Person shall mean all the right, title and interest of such Person in and to land, improvements and fixtures.
“
Received Amount
”
has the meaning specified in
Section 10.23(d)
.
“
Recipient
”
means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“Redesignation” has the meaning specified in Section 6.13(g).
“
Reduced Guaranty
”
means a Foreign Subsidiary Guaranty limited in the manner contemplated by
Section 1.03(a)
,
(b)
or
(c)
of the Agreed Credit Support Principles.
“
Reduced Guaranty
Foreign Subsidiary
” means any Foreign Subsidiary Guarantor that has executed a Reduced Guaranty.
“
Reduced Guaranty
Investment Cap
” means any limit on Investments in a Foreign Subsidiary imposed by the Administrative Agent in accordance with the last sentence of the Agreed Credit Support Principles.
“
Refinanced Debt
”
has the meaning specified in the definition of Credit Agreement Refinancing Indebtedness.
“
Refinancing
”
means (x) the repayment or redemption in full of (i) the Existing Credit Agreement and (ii) the Existing Mustang Credit Agreements, and (y) the termination of all commitments and termination and release of all security interests and guaranties in
connection therewith or the making of provisions therefor reasonably acceptable to the Administrative Agent, it being understood that the Existing Letters of Credit may remain outstanding.
“
Refinancing Revolving
Credit Commitments
” has the meaning specified in
Section 2.18(a)
.
“
Refinancing Revolving
Credit Loans
” has the meaning specified in
Section 2.18(a)
.
“
Refinancing Term
Loans
” has the meaning specified in
Section 2.18(a)
.
“
Register
”
has the meaning specified in
Section 10.06(c)
.
“
Regulated Bank
”
means (i) WEX Bank or (ii) any direct or indirect insured depository institution Subsidiary of the Company that is regulated by foreign, federal or state banking regulators, including, without limitation, the OCC, the Utah Department of Financial
Institutions, the FDIC or the Federal Reserve.
“
Related Parties
”
means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“
Relevant Jurisdiction
”
means, in relation to a Foreign Loan Party or the Specified Designated Borrower, (a) its jurisdiction of incorporation or formation; (b) any jurisdiction where any asset subject to or intended to be subject to the Liens to be created by it
pursuant to the Collateral Documents is situated; (c) any jurisdiction where it conducts its business; and (d) the jurisdiction whose laws govern the perfection of any of the Collateral Documents entered into by it.
“
Reportable Event
” means any of the events set
forth in Section 4043(c
) of ERISA, other than events for which the 30 day notice period has been waived on the Closing Date.
“
Repricing Transaction
”
has the meaning specified in
Section 2.05(c)
.
“
Request for Credit
Extension
” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.
“
Required Financial
Covenant Lenders
” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) aggregate Term A-3 Loans outstanding, (b) Total Revolving Credit Outstandings (with the aggregate amount of each
Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (c) aggregate unused Revolving Credit
Commitments;
provided
that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.
“
Required Lenders
”
means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing
Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Commitments;
provided
that the
unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“
Required Revolving
Credit Lenders
” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments;
provided
that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Revolving Credit Lenders.
“
Required Term A-3
Lenders
” means, as of any date of determination, Term A-3 Lenders holding more than 50% of the Term A-3 Facility on such date;
provided
that the portion of the Term A-3 Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term A-3 Lenders.
“
Required Term B-
2
3
Lenders
” means, as of any date of determination, at least two Term B-
2
3
Lenders holding more than 50% of the Term B-
2
3
Facility on such date;
provided
that the portion of the Term B-
2
3
Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term B-
2
3
Lenders.
“
Responsible Officer
”
means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party (or the equivalent or comparable authorized signatories for any Foreign Loan Party or the Specified Designated
Borrower) and, solely for purposes of notices given pursuant to
Article II
, any other officer or employee of the applicable Loan Party or the Specified
Designated Borrower so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party
and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party or the Specified Designated Borrower shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party or the Specified Designated Borrower, as the case may be, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party or the Specified
Designated Borrower, as applicable.
“
Restricted Payment
”
means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Company or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the
Company’s stockholders, partners or members (or the equivalent Person thereof).
“
Revaluation Date
”
means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to
Section 2.02
, and (iii) such additional dates as the Administrative Agent shall determine or the Required Revolving
Credit Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional
dates as the Administrative Agent or the L/C Issuer shall determine or the Required Revolving Credit Lenders shall require.
“
Revolving Credit
Borrowing
” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to
Section 2.01(
f
g
)
.
“
Revolving Credit
Commitment
” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to
Section 2.01(
f
g
)
or pursuant to an Additional Credit Extension Amendment, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
under the caption “Revolving Credit Commitment” or opposite such caption in the Additional Credit Extension Amendment or Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. If new Revolving Credit Commitments are established after the Closing Date pursuant to an Additional Credit Extension Amendment,
references to “Revolving Credit Commitments” herein shall mean all Revolving Credit Commitments, unless the Additional Credit Extension Amendment provides otherwise with respect to any one or more particular references to “Revolving Credit
Commitments”; and references to “Revolving Credit Facility,” “Revolving Credit Lender” and “Revolving Credit Loan” shall also be subject to such rule of interpretation. The aggregate amount of the Revolving Credit Commitments as of the Fourth
Amendment Effective Date is $720,000,000 and the Revolving Credit Commitment of each Revolving Credit Lender as of the Fourth Amendment Effective Date is set forth on Schedule II to the Fourth Amendment.
“
Revolving Credit
Facility
” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
“
Revolving Credit
Lender
” means, at any time, any Lender that has a Revolving Credit Commitment at such time.
“
Revolving Credit Loan
”
has the meaning specified in
Section 2.01(
f
g
)
or an Additional Credit Extension Amendment.
“
Revolving Credit Note
”
means a promissory note made by the Company in favor of a Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form of
Exhibit C-2
.
“
Revolving Maturity
Date
” has the meaning specified in the definition of “Maturity Date.”
“
S&P
”
means Standard & Poor’s Financial Services, LLC, a subsidiary of The McGraw-Hill Companies, Inc., and any successor thereto.
“
Same Day Funds
”
means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent
or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
“
Sanction(s)
”
means any economic sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“
HMT
”) or other Governmental Authority with responsibility for economic sanctions.
“
Scheduled
Unavailability Date
” has the meaning specified in
Section 3.03(c)(ii)
.
“
SEC
”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“
Second Amendment
”
means that certain Second Amendment to the Credit Agreement, dated as of October 30, 2017, by and among the Borrowers, the Specified Designated Borrower, the Subsidiary Guarantors, the Administrative Agent, the Swing Line Lender, the L/C Issuer
and the Incremental Revolving Lender (as defined therein).
“
Second Amendment
Effective Date
” has the meaning assigned to such term in the Second Amendment.
“
Secured Parties
”
means, collectively, the Administrative Agent, the Lenders (including Designated Lenders), the L/C Issuer, the Hedge Banks, the Cash Management Banks, Foreign Obligation Providers, the Indemnitees and each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to
Section 9.05
.
“
Securitization Assets
”
means any accounts receivable or lease receivables, whether constituting accounts, general intangibles, chattel paper, instruments or otherwise (the “
Receivables
”)
owned by the Company or any Subsidiary (whether now existing or arising or acquired in the future), all collateral securing such Receivables, all contracts and contract rights, purchase orders, records, security interests, financing statements or
other documentation in respect of such Receivables and all guarantees, letters of credit, insurance or other agreements or arrangements supporting or securing payment in respect of such Receivables or any of the foregoing, all lockboxes and
collection accounts in respect of such Receivables, all collections and proceeds of such Receivables, any warranty, indemnity, dilution or other claim arising out of the foregoing, and other assets which are of the type customarily granted or
transferred in connection with securitization transactions involving receivables similar to such Receivables.
“
Securitization
Transaction
” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or
otherwise transfer, or grant a security interest in, accounts, general intangibles, chattel paper, instruments, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or
affiliate of such Person.
“
Senior Representative
”
means, with respect to any series of Indebtedness permitted by this Agreement to be secured on the Collateral on a
pari passu
or junior or
subordinated basis, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each
of their successors in such capacities.
“Sixth Amendment” means that certain Sixth Amendment to the Credit Agreement, dated as of May 17, 2019, by and among the Borrowers, the Administrative Agent and the Lenders party thereto.
“Sixth Amendment Consenting Term B-2 Lenders” means, collectively, the Converting Consenting Term B-2 Lenders and the Non-Converting Consenting Term B-2 Lenders.
“Sixth Amendment Effective Date” has the meaning assigned to such term in the Sixth Amendment.
“Sixth Amendment Joint Lead Arrangers” means BANA, Citizens, MUFG Bank, Ltd., Wells Fargo Securities, LLC, STRH, Santander Bank, N.A., BMO Capital Markets Corp., KeyBanc Capital Markets Inc.,
Regions Capital Markets and JPMorgan Chase Bank, N.A.
“
Solvency Certificate
”
means a certificate signed by the chief financial officer of the Company, substantially in the form of
Exhibit N
.
“
Solvent
”
means, as to any Person, such Person (a) owns property whose fair salable value is greater than the amount required to pay all of its debts (including contingent liabilities) as they mature; (b) has capital that is not unreasonably small for its
business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage and (c) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code of the United States (or
“insolvent” within the meaning of equivalent Laws of such Person’s jurisdiction of incorporation). “
Fair salable value
” means the amount that could be
obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase.
“
Special Interest
Period
” has the meaning specified in
Section 2.02(a)
.
“
Special Notice
Currency
” means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.
“
Specified Acquisition
”
means an Acquisition that (a) involves the payment of consideration by the Company and its Subsidiaries in excess of $300.0 million and (b) is designated as such in a Specified Acquisition Certificate;
provided
that the Company may only designate one Acquisition as a Specified Acquisition.
“
Specified Acquisition
Certificate
” means a certificate, signed by a Responsible Officer of the Company, designating an Acquisition as a Specified Acquisition so long as such certificate (a) is delivered not less than five Business Days prior to the
closing date of such Acquisition, (b) sets forth a calculation in reasonable detail of the Acquisition consideration for the subject Acquisition, (c) sets forth calculations in reasonable detail showing compliance with Section 7.11 on a Pro Forma
Basis, after giving effect to any permanent increase therein
minus
0.25:1.00, (d) certifies that such Acquisition meets the criteria for a Specified
Acquisition and (e) is in a form reasonably satisfactory to the Administrative Agent.
“
Specified Cash
Management Agreement
” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.
“
Specified Designated
Borrower
” means WEX Card Holdings Australia Pty Ltd ACN 123 181 635, a proprietary limited company formed under the laws of Australia. The Specified Designated Borrower shall have no right to request or receive Credit Extensions
until the conditions precedent set forth in
Section 4.03
have been satisfied.
“
Specified Foreign
Loan Party
” has the meaning specified in
Section 10.23(a)
.
“
Specified Hedge
Agreement
” means any Swap Contract permitted under
Articles VI
and
VII
that is entered into by and between any Loan Party and any Hedge Bank.
“
Specified
Representations
” means the representations and warranties set forth in
Sections 5.01(a)
,
5.01(b)(ii)
,
5.02
(other than clauses (b) and (c) thereof),
5.04
,
5.14
,
5.20(a)
,
5.23(ii)
and
5.24
(solely with respect to the use of proceeds
of the initial Credit Extension on the Closing Date).
“
Spot Rate
”
for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another
currency through its principal foreign exchange trading office at approximately 11:00 a.m. local time on the date two Business Days prior to the date as of which the foreign exchange computation is made;
provided
that the Administrative Agent or the L/C Issuer may obtain such spot
rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency;
provided
,
further
, that the L/C Issuer may use such spot rate
quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“
Standard
Securitization Undertakings
” means those obligations and undertakings entered into by the Company, a Subsidiary of the Company or any Permitted Securitization Entity which are determined in good faith by the Company to be customary
in securitization transactions involving accounts receivable and other assets of the type described in the definition of “Securitization Assets,” so long as such obligations and undertakings are (i) on terms and conditions consistent with the
sale treatment of Securitization Assets in a transaction that results in a legal “true sale” of Securitization Assets in accordance with the laws of the applicable jurisdiction and (ii) not inconsistent with the treatment of the transfer of
Securitization Assets in a transaction as a legal “true sale” and otherwise consistent with customary securitization undertakings in accordance with the laws of the applicable jurisdiction;
provided
that Standard Securitization Undertakings shall not include any guaranty or other obligation of the Company or any of its Subsidiaries (other than a Permitted Securitization Entity) with respect to
any Securitization Asset that is not collected, not paid or otherwise uncollectible on account of the insolvency, bankruptcy, creditworthiness or financial inability to pay of the applicable obligor with respect to such Securitization Asset.
“
Sterling
”
and “
£
” mean the lawful currency of the United Kingdom.
“
STRH
” has
the meaning specified in the introductory paragraph hereto.
“
Subsidiary
”
of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or
more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“
Subsidiary Guaranties
”
means the Domestic Subsidiary Guaranty and each Foreign Subsidiary Guaranty.
“
Subsidiary Guarantors
”
means, collectively, the Domestic Subsidiary Guarantors and the Foreign Subsidiary Guarantors.
“Supported QFC” has the meaning specified in Section 10.28.
“
Swap Contract
”
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any
such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “
Master Agreement
”), including any such obligations or liabilities under any Master Agreement.
“
Swap Obligations
”
means with respect to any Loan Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“
Swap Termination
Value
” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap
Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for
such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“
Swing Line Borrowing
”
means a borrowing of a Swing Line Loan pursuant to
Section 2.04
.
“
Swing Line Lender
”
means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“
Swing Line Loan
”
has the meaning specified in
Section 2.04(a)
.
“
Swing Line Loan
Notice
” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b)
, which shall be substantially in the form of
Exhibit B
or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall
be approve by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.
“
Swing Line Sublimit
”
means an amount equal to the lesser of (a) $20,000,000 and (b) the Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“
Synthetic Lease
Obligation
” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on
the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“
TARGET Day
”
means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system which utilizes a single shared platform and which was launched on 19 November 2007 (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“
Tax
Receivable Agreement
” means that certain Tax Receivable Agreement dated February 22, 2005, between the Company, Cendant Corporation and Cendant Mobility Services Corporation.
“
Taxes
”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges in the nature of a tax imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
“
Term A Maturity Date
”
has the meaning specified in the definition of “Maturity Date.”
“
Term A-1 Borrowing
”
means a borrowing consisting of simultaneous Term A-1 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term A-1 Lenders pursuant to
Section 2.01(a)
.
“
Term A-1 Commitment
”
means, as to each Term A-1 Lender, its obligation to make Term A-1 Loans to the Company pursuant to
Section 2.01(a)
in an aggregate principal amount at
any one time outstanding not to exceed the amount set forth opposite such Term A-1 Lender’s name on
Schedule 2.01
under the caption “Term A-1 Commitment”
or opposite such caption in the Additional Credit Extension Amendment or the Assignment and Assumption pursuant to which such Term A-1 Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.
“
Term A-1 Facility
”
means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term A-1 Commitments at such time and (b) thereafter, the aggregate principal amount of the Term A-1 Loans of all Term A-1 Lenders outstanding at such time.
“
Term A-1 Lender
”
means (a) at any time on or prior to the Closing Date, any Lender that has a Term A-1 Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term A-1 Loans at such time.
“
Term A-1 Loan
”
means an advance made by any Term A-1 Lender under the Term A-1 Facility.
“
Term A-2 Borrowing
”
means a borrowing consisting of simultaneous Term A-2 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term A-2 Lenders pursuant to
Section 2.01(b)
.
“
Term A-2 Commitment
”
with respect to each Term A-1 Lender, the commitment of such Lender to convert its Term A-1 Loans for an equal aggregate principal amount of Term A-2
Loans on the First Amendment Effective Date pursuant to the First Amendment.
“
Term A-2 Facility
”
means, at any time, (a) on or prior to the First Amendment Effective Date, the aggregate amount of the Term A-2 Commitments at such time and (b) thereafter, the aggregate principal amount of the Term A-2 Loans of all Term A-2 Lenders outstanding
at such time.
“
Term A-2 Lender
”
means (a) at any time on or prior to the First Amendment Effective Date, any Lender that has a Term A-2 Commitment at such time and (b) at any time after the First Amendment Effective Date, any Lender that holds Term A-2 Loans at such time.
“
Term A-2 Loan
”
means an advance made by any Term A-2 Lender under the Term A-2 Facility.
“
Term A-3 Borrowing
”
means a borrowing consisting of simultaneous Term A-3 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term A-3 Lenders pursuant to
Section 2.01(c)
.
“
Term A-3 Commitment
”
(i)
with respect to each Fourth Amendment Consenting Term A-2 Lender, the commitment of such Lender to convert its Term A-2 Loans for an equal aggregate
principal amount of Term A-3 Loans on the Fourth Amendment Effective Date pursuant to the Fourth Amendment, (ii) with respect to the Additional Term A-3 Lender, its Additional Term A-3 Commitment, (iii) with respect to the Incremental Term A-3
Lender, its Incremental Term A-3 Commitment, (iv) with respect to each Tranche A 2019 Incremental Term A-3 Lender, its Tranche A 2019 Incremental Term A-3 Commitment and (v)
with respect to each Tranche B 2019 Incremental Term A-3
Lender, its Tranche B 2019 Incremental Term A-3 Commitment.”
“
Term A-3 Facility
”
means, at any time, (a) on or prior to the Fourth Amendment Effective Date, the aggregate amount of the Term A-3 Commitments at such time and (b) thereafter, the aggregate principal amount of the Term A-3 Loans (including the Incremental Term A-3
Loans, the Tranche A 2019 Incremental Term A-3 Loans and the Tranche B 2019 Incremental Term A-3 Loans) of all Term A-3 Lenders outstanding at such time.
“
Term A-3 Lender
”
means (a) at any time on or prior to the Fourth Amendment Effective Date, any Lender that has a Term A-3 Commitment at such time and (b) at any time after the Fourth Amendment Effective Date, any Lender that holds Term A-3 Loans at such time.
“
Term A-3 Loan
”
means an advance made by any Term A-3 Lender under the Term A-3 Facility.
“
Term B-1 Borrowing
”
means a borrowing consisting of simultaneous Term B-1 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term B-1 Lenders pursuant to
Section 2.01(d)
.
“
Term B-1 Commitment
”
means, as to each Term
B-1 Lender, its obligation to make Term B-1 Loans to the Company pursuant to
Section 2.01(d)
in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term B-1 Lender’s name on
Schedule 2.01
under the caption “Term B-1 Commitment” or opposite such caption in the Additional Credit Extension Amendment or the Assignment and Assumption pursuant to which such Term B-1 Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“
Term B-1 Lender
”
means at any time, (a) on or prior to the Closing Date, any Lender that has a Term B-1 Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term B-1 Loans at such time.
“
Term B-2 Borrowing
”
means a borrowing consisting of simultaneous Term B-2 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term B-2 Lenders pursuant to
Section 2.01(e)
.
“
Term B-2 Commitment
”
(i) with respect to each First Amendment Consenting Term B-1 Lender, the commitment of such Lender to convert its Term B-1 Loans for an equal aggregate
principal amount of Term B-2 Loans on the First Amendment Effective Date pursuant to the First Amendment, (ii) with respect to the Additional Term Lender, its Additional Term B-2 Commitment, and (iii) with respect to the Incremental Term B-2
Lender, its Incremental Term B-2 Commitment, in each case as such amount may be adjusted from time to time in accordance with this Agreement.
“
Term B-2 Facility
”
means, at any time, (a) on or prior to the First Amendment Effective Date, the aggregate amount of the Term B-2 Commitments at such time and (b) thereafter, the aggregate principal amount of the Term B-2 Loans (including the Incremental Term B-2
Loans) of all Term B-2 Lenders outstanding at such time.
“
Term B-2 Lender
”
means at any time, (a) on or prior to the First Amendment Effective Date, any Lender that has a Term B-2 Commitment at such time and (b) at any time after the First Amendment Effective Date, any Lender that holds Term B-2 Loans at such time.
“
Term B-2 Loan
”
means an advance made by any Term B-2 Lender under the Term B-2 Facility.
“Term B-3 Borrowing” means a borrowing consisting of simultaneous Term B-3 Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of
the Term B-3 Lenders pursuant to Section 2.01(f).
“Term B-3 Commitment” (i) with respect to each Sixth Amendment Consenting Term B-2 Lender, the commitment of such Lender to convert its Term B-2 Loans for an equal aggregate principal amount
of Term B-3 Loans on the Sixth Amendment Effective Date pursuant to the Sixth Amendment, (ii) with respect to the Additional Term B-3 Lender, its Additional Term B-3 Commitment, and (iii) with respect to the Incremental Term B-3 Lender, its
Incremental Term B-3 Commitment, in each case as such amount may be adjusted from time to time in accordance with this Agreement.
“Term B-3 Facility” means, at any time, (a) on or prior to the Sixth Amendment Effective Date, the aggregate amount of the Term B-3 Commitments at such time and (b) thereafter, the aggregate
principal amount of the Term B-3 Loans (including the Incremental Term B-3 Loans) of all Term B-3 Lenders outstanding at such time.
“Term B-3 Lender” means at any time, (a) on or prior to the Sixth Amendment Effective Date, any Lender that has a Term B-3 Commitment at such time and (b) at any time after the Sixth
Amendment Effective Date, any Lender that holds Term B-3 Loans at such time.
“Term B-3 Loan” means an advance made by any Term B-3 Lender under the Term B-3 Facility.
“
Term Borrowing
”
means either a Term A-1 Borrowing, Term A-2 Borrowing, Term A-3 Borrowing, Term B-1 Borrowing
or
,
Term B-2 Borrowing
or Term B-3 Borrowing
or a borrowing of any term loan established pursuant to an Additional Credit Extension Amendment.
“
Term Commitment
”
means either a Term A-1 Commitment, Term A-2 Commitment, Term A-3 Commitment, Term B-1 Commitment
or
,
Term B-2 Commitment
or Term B-3 Commitment
or any term loan commitment established pursuant to an Additional Credit Extension Amendment.
“
Term Facilities
”
means, at any time, the Term A-1 Facility, the Term A-2 Facility, Term A-3 Facility, the Term B-1 Facility, the Term B-2 Facility
, the Term B-3 Facility
and any term loan credit facilities established pursuant to an Additional Credit Extension Amendment.
“
Term Lender
”
means, at any time, a Term A-1 Lender, a Term A-2 Lender, a Term A-3 Lender, a Term B-1 Lender, a Term B-2 Lender
, a Term B-3 Lender
or any other Lender that holds Term Loans at such time.
“
Term Loan
”
means a Term A-1 Loan, Term A-2 Loan, Term A-3 Loan, Term B-1 Loan
or
,
a Term B-2 Loan
or a Term B-3 Loan
or any term loan established pursuant to an Additional Credit Extension Amendment.
“
Term Loan Springing Maturity Date
”
means April 1, 2023.
“
Term Note
”
means a promissory note made by the Company in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of
Exhibit C‑1
.
“
Test Period
”
means, as of any date of determination, the last period of four fiscal quarters of the Company for which financial statements shall have been (or were required to have been) delivered in accordance with
Section 6.01(a)
or
(b)
.
“
Third Amendment
”
means that certain Third Amendment to the Credit Agreement, dated as of January 17, 2018, by and among the Borrowers, the Administrative Agent and the Lenders party thereto.
“
Third Amendment
Assignment
” means an assignment of Term B-2 Loans by a Non-Consenting Lender (as defined in the Third Amendment) to the Purchasing Term Lender (as defined in the Third Amendment) on the Third Amendment Effective Date pursuant to
Section 10.13(d)
.
“
Third Amendment
Effective Date
” has the meaning assigned to such term in the Third Amendment.
“
Threshold Amount
”
means $30,000,000.
“
Title Company
”
has the meaning assigned to such term in
Section 6.13(c)(ii)
.
“
Total Outstandings
”
means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“
Total Revolving
Credit Outstandings
” means the aggregate Outstanding Amount of all Revolving Credit Loans, Swing Line Loans and L/C Obligations.
“
Tranche A 2019
Incremental Term A-3 Commitment
” has the meaning assigned to such term in the Fifth Amendment.
“
Tranche A 2019
Incremental Term A-3 Lender
” has the meaning assigned to such term in the Fifth Amendment.
“
Tranche A 2019
Incremental Term A-3 Loans
” has the meaning assigned to such term in the Fifth Amendment.
“
Tranche A Fifth
Amendment Effective Date
” has the meaning assigned to such term in the Fifth Amendment.
“
Tranche B 2019
Incremental Term A-3 Commitment
” has the meaning assigned to such term in the Fifth Amendment.
“
Tranche B 2019
Incremental Term A-3 Lender
” has the meaning assigned to such term in the Fifth Amendment.
“
Tranche B 2019
Incremental Term A-3 Loans
” has the meaning assigned to such term in the Fifth Amendment.
“
Tranche B Fifth
Amendment Effective Date
” has the meaning assigned to such term in the Fifth Amendment.
“
Transactions
”
means, collectively, (a) the consummation of EFS Acquisition and other related transactions contemplated by the Acquisition Agreement, (b) the
Refinancing, (c) the consummation of the Equity Issuance, (d) the entering into of this Agreement and the other Loan Documents and initial Credit Extensions on the Closing Date and (e) the payment of all fees and expenses in connection with the
foregoing.
“
Treaty Lender
”
means a Lender which:
(a)
is treated as a resident of a Treaty State for the purposes of a Treaty with the United Kingdom; and
(b)
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected.
“
Treaty State
”
means a jurisdiction having a double taxation agreement (a “
Treaty
”) with the United Kingdom which makes provision for full exemption from tax, or a
reduction in tax, imposed by the United Kingdom on interest.
“
Type
”
means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
“
UCC
” means
the Uniform Commercial Code as in effect from time to time in the State of New York;
provided
,
however
, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of any Secured Party’s security interest in any item or portion of the Collateral is governed
by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof
relating to such perfection or priority and for purposes of definitions relating to such provisions.
“
Unfunded Pension
Liability
” means the excess of a Pension Plan
’
s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Pension Plan
’
s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code
for the applicable plan year.
“
United States
”
and “
U.S.
” mean the United States of America.
“
Unreimbursed Amount
”
has the meaning specified in
Section 2.03(c)(i)
.
“
USA PATRIOT Act
”
means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“
U.S. IP Security
Agreements
” has the meaning specified in
Section 4.01(a)(iv)
.
“
U.S. Person
”
means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“
U.S. Security
Agreement
” means a security agreement, in substantially the form of
Exhibit I
(together with each other security agreement and security
agreement supplement delivered pursuant to
Section 6.13(a)
, duly executed by each applicable Loan Party).
“U.S. Special Resolution Regimes” has the meaning specified in Section 10.28.
“
U.S. Tax Compliance
Certificate
” has the meaning specified in
Section 3.01(e)(ii)(B)(III)
.
“
Weighted Average Life
to Maturity
” means, 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,
serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment by (b) the then outstanding principal amount of such Indebtedness.
“
WES
” means
WEX Europe Services Limited, a private company limited by shares incorporated under the Laws of England and Wales with registered number 08284241.
“
WES Entity
”
means WES or any direct or indirect Subsidiary thereof.
“
WES Stock Pledge
Documents
” means each agreement executed and delivered to the Administrative Agent for the benefit of the
applicable
Secured Parties under
Section 6.13(
h
g
)
pursuant to which the Equity Interests of a WES Stock Pledge Subsidiary are pledged to the Administrative Agent for the benefit of the
applicable
Secured Parties to secure the Foreign Obligations as provided for therein.
“
WES Stock Pledge
Subsidiary
” means a Subsidiary of WES designated as such pursuant to
Section 6.13(g)
.
“
WEX Bank
”
means WEX Bank, a Utah industrial bank.
“
WEX International
Holdings
” means Wright Express International Holdings Limited, a private company limited by shares incorporated under the Laws of England and Wales with registered number 08008714.
“
Wholly-Owned
”
means, with respect to any Subsidiary of any Person, the ownership all of the outstanding Equity Interests of such Subsidiary (other than directors’ qualifying shares) by such Person or one or more Wholly-Owned Subsidiaries of such Person.
“
Write-Down and
Conversion Powers
” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country,
which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.02
Other Interpretive Provisions
. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)
The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “
include
,” “
includes
”
and “
including
” shall be deemed to be followed by the phrase “
without
limitation
.” The word “
will
” shall be construed to have the same meaning and effect as the word “
shall
.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “
herein
,” “
hereof
” and “
hereunder
,” and words of similar import when used in
any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such
law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “
asset
” and “
property
” shall be construed to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)
In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but
excluding”; and the word “through” means “to and including.”
(c)
Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other
Loan Document.
(d)
Any reference herein to a
merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a
limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or
with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also
constitute such a Person or entity).
1.03
Accounting Terms
.
(a)
Generally
. All accounting terms not specifically or completely defined herein shall
be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as
in effect from time to time, applied in a manner consistent with that used in preparing the Historical Financial Statements set forth in clause (a)(x) of the definition thereof,
except
as otherwise specifically prescribed herein.
(b)
Changes in GAAP
. If at any time any change in GAAP would affect the computation of
any requirement, including any financial ratio, set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);
provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
1.04
Rounding
. Any financial ratios required to be
maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05
Exchange Rates; Currency Equivalents
.
(a)
The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of
Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.
(b)
Wherever in this Agreement in connection with a Revolving Credit Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or
extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Revolving Credit Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency, such
amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer,
as the case may be.
1.06
Additional Alternative Currencies
.
(a)
The Company may from time to time request that Eurocurrency Rate Loans under the Revolving Credit Facility be made and/or Letters of Credit be issued in a currency other than
those specifically listed in the definition of “Alternative Currency”;
provided
that (i) such requested currency is an Eligible Currency and (ii) such
requested currency shall only be treated as a “LIBOR Quoted Currency” to the extent that there is published LIBOR rate for such currency. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall
be subject to the approval of the Administrative Agent and the Revolving Credit Lenders in their sole discretion; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval
of the Administrative Agent and the L/C Issuer in their sole discretion.
(b)
Any such request shall be made to the Administrative Agent not later than 11:00 a.m., New York time, 20 Business Days prior to the date of the desired Credit Extension (or
such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request pertaining to
Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer
thereof. Each Revolving Credit Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than
11:00 a.m., New York time, ten Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c)
Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a
refusal by such Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Appropriate Lenders consent to
making Eurocurrency Rate Loans in such requested currency and the Administrative Agent and such Lenders reasonably determine that an appropriate interest rate is available to be used for such requested currency, the Administrative Agent shall so
notify the Company and (i) the Administrative Agent and such Lenders may amend the definition of Eurocurrency Rate for any non-LIBOR Quoted Currency to the extent necessary to add the applicable Eurocurrency Rate for such currency and (ii) to the
extent the definition of Eurocurrency Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an
Alternative Currency for purposes of any Borrowings of Eurocurrency Rate Loans. If the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the
Company and (A) the Administrative Agent and the L/C Issuer may amend the definition of Eurocurrency Rate for any non-LIBOR Quoted Currency to the extent necessary to add the applicable Eurocurrency Rate for such currency and (B) to the extent
the definition of Eurocurrency Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative
Currency, for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this
Section
1.06
, the Administrative Agent shall promptly so notify the Company.
1.07
Change of Currency
.
(a)
Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful
currency after the Closing Date shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this
Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which such member state adopts the Euro as its lawful currency;
provided
that if any Revolving Credit Borrowing in
the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Revolving Credit 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 from time to time specify to be appropriate to
reflect the adoption of the Euro by any member state of the European Union and any relevant market 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 may from time to time specify to be appropriate
to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
1.08
Times of Day
. Unless
otherwise specified, all references herein to times of day shall be references to Eastern
time (daylight or standard, as applicable).
1.09
Letter of Credit Amounts
.
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect
at such time;
provided
,
however
, that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of
the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.10
Limited Condition Transaction
.
In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:(a)
determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test
(including the calculation of the Incremental Cap and any conditions to the effectiveness of the establishment or incurrence of an Incremental Facility)
; or
(b)
testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets),
in each case, at the option of the Company (the Company’s election to exercise such option in
connection with any Limited Condition Transaction, an “
LCT Election
”), which LCT Election shall be in writing and delivered to the Administrative Agent,
the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreement for such Limited Condition Transaction is entered into or the date irrevocable notice for such Limited Condition
Transaction is given (the “
LCT Test Date
”), and if, after giving pro forma effect to the Limited Condition Transaction, the Company or any of its
Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test, representations, warranties, Defaults or Events of Default or basket, such ratio, test, representations,
warranties, Defaults or Events of Default or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Company has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or
tested as of the LCT Test Date would have failed to have been satisfied, or any representation or warranty would have been breached, or any Default or Event of Default would have occurred, in each case as a result of fluctuations in any such
ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or fluctuations of the target of such Limited Condition Transaction, or as a result of the occurrence of any Default or Event of Default or
other event, in each case at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been satisfied as a result of such fluctuations, such representation or
warranty shall not be deemed to have been breached, and (solely for the purposes of any Default or Event of Default blocker) such default or event of default shall be deemed not to have occurred. If the Company has made an LCT Election for any
Limited Condition Transaction, then in connection with any event or transaction occurring after the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the
definitive agreement or date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without
consummation of such Limited Condition Transaction, for purposes of determining whether such ratio, test or basket availability has been complied with under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro
Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
1.11
Interest Rates
. The Administrative Agent does not warrant,
nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurocurrency Rate” or with respect to any rate that
is an alternative or replacement for or successor to any of such rate (including, without limitation, any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.
1.12
Basket Calculations
. If any of the baskets set forth in
this Agreement are exceeded solely as a result of fluctuations to Consolidated EBITDA or Consolidated Total Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under this
Agreement, such baskets will not be deemed to have been exceeded solely as a result of such fluctuations.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
The Loans
.
(a)
The Term A-1 Borrowing
. Subject to the terms and conditions set forth herein, each
Term A-1 Lender severally agrees to make a single loan to the Company on the Closing Date in an amount equal to such Term A-1 Lender’s Term A-1 Commitment. The Term A-1 Borrowing shall consist of Term A-1 Loans made simultaneously by the Term
A-1 Lenders in accordance with their respective Term A-1 Commitments. Amounts borrowed under this
Section 2.01(a)
and repaid or prepaid may not be
reborrowed. Term A-1 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(b)
The Term A-2 Borrowing
.
Subject to the terms and conditions set forth herein and in the First Amendment, each Term A-1 Lender agrees to have all of its outstanding Term A-1 Loans converted to an equivalent principal amount of
Term A-2 Loans effective as of the First Amendment Effective Date. Amounts borrowed under this
Section 2.01(b)
and repaid or prepaid may not be reborrowed. Term A-2 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(c)
The Term A-3 Borrowing
.
Subject to the terms and conditions set forth herein and in the Fourth Amendment, (i) the Additional Term A-3 Lender agrees to make a Term A-3 Loan to the Company on the Fourth Amendment Effective Date in
Dollars in a principal amount not to exceed its Additional Term A-3 Commitment, (ii) each Converting Consenting Term A-2 Lender agrees to have all of its outstanding Term A-2 Loans (or such lesser amount as notified and allocated to such
Converting Consenting Term A-2 Lender by the Administrative Agent, as determined by the Company and the Administrative Agent in their sole discretion) converted to an equivalent principal amount of Term A-3 Loans effective as of the Fourth
Amendment Effective Date and (iii) each Non-Converting Consenting Term A-2 Lender agrees to have all of its outstanding Term A-2 Loans prepaid and will purchase by assignment from the Additional Term A-3 Lender Term A-3 Loans in a principal
amount equal to the principal amount of such Term A-2 Loans (or such lesser amount as notified and allocated to such Non-Converting Consenting Term A-2 Lender by the Administrative Agent, as determined by the Company and the Administrative
Agent in their sole discretion). Amounts borrowed under this
Section 2.01(c)
and repaid or prepaid may not be reborrowed. Term A-3 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(d)
The Term B-1 Borrowing
. Subject to the terms and conditions set forth herein, each
Term B-1 Lender severally agrees to make a single loan to the Company on the Closing Date in an amount equal to such Term B-1 Lender’s Term B-1 Commitment. The Term B-1 Borrowing shall consist of Term B-1 Loans made simultaneously by the Term
B-1 Lenders in accordance with their respective Term B-1 Commitments. Amounts borrowed under this
Section 2.01(d)
and repaid or prepaid may not be
reborrowed. Term B-1 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(e)
The Term B-2 Borrowing
.
Subject to the terms and conditions set forth herein and in the First Amendment, (i) the Additional Term Lender agrees to make a Term B-2 Loan to the Company on the First Amendment Effective Date in
Dollars in a principal amount not to exceed its Additional Term B2 Commitment, (ii) each Converting Consenting Term B-1 Lender agrees to have all of its outstanding Term B-1 Loans (or such lesser amount as notified and allocated to such
Converting Consenting Term B-1 Lender by the Administrative Agent, as determined by the Company and the Administrative Agent in their sole discretion) converted to an equivalent principal amount of Term B-2 Loans effective as of the First
Amendment Effective Date and (iii) each Non-Converting Consenting Term B-1 Lender agrees to have all of its outstanding Term B-1 Loans prepaid and will purchase by assignment from the Additional Term Lender Term B-2 Loans in a principal amount
equal to the principal amount of such Term B-1 Loans (or such lesser amount as notified and allocated to such Non-Converting Consenting Term B-1 Lender by the Administrative Agent, as determined by the Company and the Administrative Agent in
their sole discretion). Amounts borrowed under this
Section 2.01(e)
and repaid or prepaid may not be reborrowed. Term B-2 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(f)
The Term B-3 Borrowing. Subject to the terms and conditions set forth herein and in the Sixth Amendment, (i) the Additional Term B-3 Lender agrees to make a Term B-3 Loan
to the Company on the Sixth Amendment Effective Date in Dollars in a principal amount not to exceed its Additional Term B-3 Commitment, (ii) each Converting Consenting Term B-2 Lender agrees to have all of its outstanding Term B-2 Loans (or
such lesser amount as notified and allocated to such Converting Consenting Term B-2 Lender by the Administrative Agent, as determined by the Company and the Administrative Agent in their sole discretion) converted to an equivalent principal
amount of Term B-3 Loans effective as of the Sixth Amendment Effective Date and (iii) each Non-Converting Consenting Term B-2 Lender agrees to have all of its outstanding Term B-2 Loans prepaid and will purchase (or cause one or more of its
designated Affiliates to purchase) by assignment from the Additional Term B-3 Lender Term B-3 Loans in a principal amount equal to the principal amount of such Term B-2 Loans (or such lesser amount as notified and allocated to such
Non-Converting Consenting Term B-2 Lender by the Administrative Agent, as determined by the Company and the Administrative Agent in their sole discretion). Amounts borrowed under this Section 2.01(f) and repaid or prepaid may not be
reborrowed. Term B-3 Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
(g)
(f)
The Revolving Credit Borrowings
. Subject to the terms and conditions set forth herein,
each Revolving Credit Lender severally agrees to make loans (each such loan, a “
Revolving Credit Loan
”) to the Borrowers in Dollars or in one or more
Alternative Currencies from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment;
provided
,
however
, that after giving effect to any Revolving Credit Borrowing, (i) the
Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender,
plus
such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations,
plus
such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, (iii) the aggregate Outstanding Amount of all
Revolving Credit Loans made to the Designated Borrowers shall not exceed the Designated Borrower Sublimit and (iv) the aggregate Outstanding Amount of all Revolving Credit Loans denominated in Alternative Currencies shall not exceed the
Alternative Currency Sublimit. Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this
Section
2.01(
f
g
)
, prepay under
Section 2.05
, and reborrow under this
Section 2.01(
f
g
)
. Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.
2.02
Borrowings, Conversions and Continuations of Loans
.
(a)
Each Borrowing (other than pursuant to Sections
2.01(c)(ii)
and
,
2.01(e)(ii)
and 2.01(f)(ii)
), each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Company’s irrevocable notice
to the Administrative Agent, which may be given by (A) telephone or (B) a Loan Notice;
provided
that any telephonic notice must be confirmed immediately
by delivery to the Administrative Agent of a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than 12:00 noon (i) three Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans, (ii) four Business Days (or five Business Days in the case of a Special Notice Currency)
prior
to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing of Base Rate Loans;
provided
,
however
, that if the Company wishes to request Eurocurrency Rate Loans having an Interest Period other
than one, two, three or six months in duration as provided in the definition of “Interest Period” (a “
Special Interest Period
”), the applicable notice must
be received by the Administrative Agent not later than 12:00 noon (i) four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) five Business Days (or
six Business Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies for a Special Interest Period, whereupon the
Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Special Interest Period is acceptable to all of them. Not later than 12:00 noon, (i) three Business Days before the requested date
of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion
or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, the Administrative Agent shall notify the Company (which notice may be by telephone) whether or not the requested Special Interest Period has been consented to by
all the Lenders. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in
Section 2.03(c)
and
Section 2.04(c)
, each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice shall specify (i) whether the Company is requesting a Term A-1 Borrowing, a Term A-2 Borrowing, a Term A-3 Borrowing, a Term B-1
Borrowing, a Term B-2 Borrowing,
a Term B-3 Borrowing,
a Revolving Credit Borrowing
or a Borrowing of any other Class of Loans, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of
the Interest Period with respect thereto, (vi) the currency of the Revolving Credit Loans to be borrowed, and (vii) if applicable, the Designated Borrower. If the Company fails to specify a currency in a Loan Notice requesting a Borrowing, then
the Revolving Credit Loans so requested shall be made in Dollars. If the Company fails to specify a Type of Loan in a Loan Notice or if the Company fails to give a timely notice requesting a conversion or continuation, then the applicable Term
Loans or Revolving Credit Loans shall be made as, or converted to, Base Rate Loans;
provided
,
however
, that in the case of a failure to timely request a continuation of Revolving Credit Loans denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in their
original currency with an Interest Period of one month. Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the
Company requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month
(except in the case of the initial Interest Period for the Term A-3 Loans, the Tranche A 2019 Incremental Term A-3 Loans
, the Tranche B 2019
Incremental Term A-3 Loans,
and Term B-
2
3
Loans, which shall each be determined in accordance with the definition of Interest Period)
. Notwithstanding anything to the contrary herein, (i) a Swing Line Loan may not be converted
to a Eurocurrency Rate Loan, (ii) Term Loans shall at all times be maintained in Dollars and (iii) no Revolving Credit Loan may be converted into or continued as a Revolving Credit Loan denominated in a different currency, but instead must be
prepaid in the original currency of such Revolving Credit Loan and reborrowed in the other currency.
(b)
Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and, in the case of Revolving Credit Loans, currency) of its
Applicable Percentage under the applicable Facility of the applicable Term Loans or Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the Borrowers, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans, or continuation of Revolving Credit Loans denominated in a currency other than Dollars, in each case described in
Section 2.02(a)
. In the case of a Term Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative
Agent’s Office for the applicable currency not later than 2:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Revolving Credit Loan in an
Alternative Currency, in each case on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section
4.02
(and, if such Borrowing is the initial Credit Extension to the Specified Designated Borrower,
Section 4.03
), the Administrative Agent
shall make all funds so received available to the Company or the other applicable Borrower not later than 5:00 p.m. on the Business Day specified in the Loan Notice in like funds as received by the Administrative Agent either by (i) crediting the
account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the
Company;
provided
,
however
, that if, on the date that a Loan
Notice with respect to a Borrowing of Revolving Credit Loans denominated in Dollars is given by the Company, there are L/C Borrowings outstanding, then the proceeds of such Borrowing,
first
, shall be applied to the payment in full of any such L/C Borrowings, and,
second
, shall be made available to the
applicable Borrower as provided above.
(c)
During the existence of a Default, no Loans denominated in Dollars may be requested as, converted or continued as, Eurocurrency Rate Loans, and no Loans denominated in any
Alternative Currency may be requested (but Loans denominated in an Alternative Currency may be converted or continued) as Eurocurrency Rate Loans, without the consent of the Required Lenders, and during the existence of an Event of Default, the
Required Lenders may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the
then current Interest Period with respect thereto.
(d)
The Administrative Agent shall promptly notify the Company and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Company and the Lenders of any change in Bank of America’s “prime rate” used in determining the Base Rate promptly
following the public announcement of such change.
(e)
After giving effect to all Term A-1 Borrowings, Term A-2 Borrowings and Term A-3 Borrowings, all conversions of Term A-1 Loans, Term A-2 Loans and Term A-3 Loans from one Type
to the other, and all continuations of Term A-1 Loans, Term A-2 Loans and Term A-3 Loans as the same Type, there shall not be more than two Interest Periods in effect in respect of the Term A-1 Facility, Term A-2 Facility and Term A-3 Facility.
After giving effect to all Term B-1 Borrowings
and
,
Term B-2 Borrowings
and Term B-3 Borrowings
, all conversions of Term B-1 Loans
and
,
Term B-2 Loans
and Term B-3 Loans
from one Type to the other, and all continuations of Term B-1 Loans
and
,
Term
B-2 Loans
and Term B-3 Loans
as the same Type, there shall not be more than two
Interest Periods in effect in respect of the Term B-1 Facility
and
,
Term B-2 Facility
and Term B-3 Facility
. After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving
Credit Loans as the same Type, there shall not be more than eight Interest Periods in effect in respect of the Revolving Credit Facility. For the avoidance of doubt, (i) all Term B-
2
3
Loans
made on the
First
Sixth
Amendment Effective Date and all Term B-
2
3
Loans converted from Term B-
1
2
Loans on the
First
Sixth
Amendment Effective Date shall be of the same Type and have the same initial Interest Period as set forth in
clause (v
clauses
(xi) and (xii
) of the definition of “Interest Period” herein and (ii) all Term A-3 Loans made on the Fourth Amendment Effective Date and all Term A-3 Loans converted from Term A-2 Loans on the Fourth Amendment Effective Date shall
be of the same Type and have the same initial Interest Period as set forth in clause (vii) of the definition of “Interest Period” herein.
2.03
Letters of Credit
.
(a)
The Letter of Credit Commitment
.
(i)
Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon
the agreements of the Lenders set forth in this
Section 2.03
, (1) from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its
Subsidiaries and any drawings thereunder;
provided
that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x)
the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender,
plus
such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations,
plus
such Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of
the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested
complies with the conditions set forth in the provisos to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii)
The L/C Issuer shall not issue any Letter of Credit, if:
(
a
)
subject to
Section 2.03(b)(iii)
, the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Credit Lenders have approved such
expiry date; or
(
b
)
the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.
(iii)
The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(
a
)
any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(
b
)
the issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer applicable to letters of credit generally;
(
c
)
except as otherwise agreed by the Administrative Agent and the L/C Issuer, such
Letter of Credit is in an initial stated amount less than $500,000;
(
d
)
except as otherwise agreed by the Administrative Agent and the L/C Issuer, such
Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(
e
)
the L/C Issuer does not as of the issuance date of such requested Letter of Credit
issue Letters of Credit in the requested currency;
(
f
)
such Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(
g
)
a default of any Revolving Credit Lender’s obligations to fund under
Section 2.03(c)
exists or any Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the
delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to
Section 2.15(a)(iv)
) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations
as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv)
The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such
time to issue such Letter of Credit in its amended form under the terms hereof.
(v)
The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer
would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi)
The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in
Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term “Administrative Agent” as used in
Article IX
included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b)
Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit
.
(i)
Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the
Company delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Company. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to
be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H)
such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the Company shall furnish to the
L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
(ii)
Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Company and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.
Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in
Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall,
on the requested date, issue a Letter of Credit for the account of the Company (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary
business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter
of Credit in an amount equal to the product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage for the Revolving Credit Facility
times
the amount of such Letter of Credit.
(iii)
If the Company so requests in any applicable Letter of Credit Application, the L/C Issuer may, in
its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “
Auto-Extension Letter of Credit
”);
provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “
Non-Extension
Notice Date
”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Company shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date;
provided
,
however
, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a)
or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Revolving Credit Lenders
have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Credit Lender or the Company that one or more of the applicable conditions specified in
Section 4.02
is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(iv)
Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an
advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Company and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c)
Drawings and Reimbursements; Funding of Participations
.
(i)
Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Company and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Company shall reimburse the L/C Issuer in such Alternative Currency,
unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Company shall have notified the L/C
Issuer promptly following receipt of the notice of drawing that the Company will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency,
the L/C Issuer shall notify the Company of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “
Honor Date
”), the Company shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. In the event that (A) a drawing
denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this
Section 2.03(c)(i)
and (B) the
Dollar amount paid by the Company, whether on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing,
the Company agrees, as a separate and independent obligation, to indemnify the L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing. If the Company fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in
the case of a Letter of Credit denominated in an Alternative Currency) (the “
Unreimbursed Amount
”), and the amount of such Revolving Credit
Lender’s Applicable Revolving Credit Percentage thereof. In such event, the Company shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02
for the principal amount of Base Rate Loans, but subject to the
amount of the unutilized portion of the Revolving Credit Facility and the conditions set forth in
Section 4.02
(other than the delivery of a Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i)
may be given by telephone if
immediately confirmed in writing;
provided
that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect
of such notice.
(ii)
Each Revolving Credit Lender shall upon any notice pursuant to
Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated
payments in an amount equal to its Applicable Revolving Credit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii)
, each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Credit Loan to the
Company in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.
(ii)
With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing
of Base Rate Loans because the conditions set forth in
Section 4.02
cannot be satisfied or for any other reason, the Company shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.
In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03
.
(iv)
Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this
Section 2.03(c)
to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Revolving Credit Lender’s
Applicable Revolving Credit Percentage of such amount shall be solely for the account of the L/C Issuer.
(v)
Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c)
, shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Company, any Subsidiary or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided
,
however
, that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this
Section 2.03(c)
is subject to the conditions set forth in
Section 4.02
(other than
delivery by the Company of Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Company to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi)
If any Revolving Credit Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this
Section 2.03(c)
by
the time specified in
Section 2.03(c)(ii)
, the L/C Issuer shall be entitled to recover from such Revolving Credit Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this
Section 2.03(c)
shall be
conclusive absent manifest error.
(d)
Repayment of Participations
.
(i)
At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from
any Revolving Credit Lender such Revolving Credit Lender’s L/C Advance in respect of such payment in accordance with
Section 2.03(c)
, if the
Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Company or otherwise, including proceeds of Cash Collateral applied thereto
by the Administrative Agent), the Administrative Agent will distribute to such Revolving Credit Lender its Applicable Revolving Credit Percentage thereof in Dollars and in the same funds as those received by the Administrative Agent.
(ii)
If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(i)
is required to be returned under any of the circumstances described in
Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer
its Applicable Revolving Credit Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Credit Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the Revolving Credit Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)
Obligations Absolute
. The obligation of the Company to reimburse the L/C Issuer for
each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)
any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii)
the existence of any claim, counterclaim, setoff, defense or other right that the Company or any Subsidiary may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)
any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv)
any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(v)
any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Company or any Subsidiary or in the relevant currency
markets generally; or
(vi)
any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary;
provided
that the foregoing
shall not excuse the L/C Issuer from liability to the Company or any of its Subsidiaries to the extent of direct damages (as opposed to consequential damages) suffered by the
Company
or any of its Subsidiaries that are caused by the L/C Issuer’s bad faith, gross negligence or willful misconduct.
The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto that is
delivered to it and, in the event of any claim of noncompliance with the Company
’
s instructions or other irregularity, the Company will
immediately notify the L/C Issuer. The Company shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f)
Role of L/C Issuer
. Each Lender and the Company agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders, the Required Lenders, the Revolving Credit Lenders or the Required Revolving Credit
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit
or Issuer Document. The Company hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided
,
however
, that this assumption is not intended to, and shall not, preclude the Company
’
s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of
Section
2.03(e)
;
provided
,
however
, that anything in
such clauses to the contrary notwithstanding, the Company may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Company which the Company proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.
In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g)
Cash Collateral
. (19) Upon the request of the Administrative Agent, (A) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the
Company shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender that is a Revolving Credit Lender, within three Business Days after the
request of the Administrative Agent or the L/C Issuer, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to
Section 2.15(a)(iv)
and any Cash Collateral provided by the Defaulting Lender).
(ii)
In addition, if the Administrative Agent notifies the Company at any time that the Outstanding
Amount of all L/C Obligations at such time exceeds 100% (or, in the case of any such excess determined by the Administrative Agent to have resulted solely from foreign currency fluctuations, 102%) of the Letter of Credit Sublimit then in effect,
then, within two Business Days after receipt of such notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.
(iii)
The Administrative Agent may, at any time and from time to time after the initial deposit of Cash
Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(iv)
Sections
2.05
,
8.02(i)(c)
and
8.02(ii)(c)
set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this
Section 2.03
,
Section 2.05
and
Sections 8.02(i)(c)
and
8.02(ii)(c)
, “
Cash Collateralize
” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. Upon such pledge and deposit, the Company shall grant to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.
(h)
Applicability of ISP
. Unless otherwise expressly agreed by the L/C Issuer and the
Company when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each standby Letter of Credit.
(i)
Letter of Credit Fees
. The Company shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit Percentage, in Dollars, a Letter of Credit fee (the “
Letter of Credit Fee
”)
for each Letter of Credit equal to the Applicable Rate
times
the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit,
provided
,
however
, that any Letter of Credit Fees otherwise
payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this
Section 2.03
shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their respective Applicable Percentages
allocable to such Letter of Credit pursuant to
Section 2.15(a)(iv)
, with the balance of such fee, if any, payable to the L/C Issuer for its own account.
For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section
1.09
. Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the
Required Revolving Credit Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j)
Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer
. The
Company shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee with respect to each Letter of Credit, at a rate per annum equal to 0.125%, computed on the Dollar Equivalent of the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period
(or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.09
.
In addition, the Company shall pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters
of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(k)
Conflict with Issuer Documents
. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.
(l)
Letters of Credit Issued for Subsidiaries
. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Company shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Company
hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that the Company’s business derives substantial benefits from the businesses of such Subsidiaries.
2.04
Swing Line Loans
.
(a)
The Swing Line
. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04
, to make loans in Dollars (each such loan, a “
Swing Line Loan
”) to the Company from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment;
provided
that after giving effect to any Swing
Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender at such time,
plus
such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations at such time,
plus
such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender’s Revolving
Credit Commitment;
provided
,
further
, that the Company shall
not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow under this
Section 2.04
, prepay under
Section 2.05
, and reborrow under this
Section 2.04
. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage
times
the amount of such Swing Line Loan.
(b)
Borrowing Procedures
. Each Swing Line Borrowing shall be made upon the Company’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice;
provided
that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such notice must be received by the Swing Line Lender and the Administrative Agent not
later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the
Swing Line Lender will notify the Administrative Agent of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender)
prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of
Section 2.04(a)
, or (B) that one or more of the applicable conditions specified in
Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of
its Swing Line Loan available to the Company at its office by crediting the account of the Company on the books of the Swing Line Lender in Same Day Funds.
(c)
Refinancing of Swing Line Loans
.
(i)
The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the
Company (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Revolving Credit Loan in an amount equal to such Lender’s Applicable Revolving Credit Percentage
of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02
, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving
Credit Facility and the conditions set forth in
Section 4.02
. The Swing Line Lender shall furnish the Company with a copy of the applicable Loan
Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Applicable Revolving Credit Percentage of the amount specified in such Loan Notice available to the
Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(c)(ii)
, each Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Credit Loan to the Company in such
amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii)
If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in
accordance with
Section 2.04(c)(i)
, the request for Base Rate Revolving Credit Loans submitted by the Swing Line Lender as set forth herein shall
be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to
Section 2.04(c)(i)
shall be deemed payment in respect of such participation.
(iii)
If any Revolving Credit Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c)
by the time
specified in
Section 2.04(c)(i)
, the Swing Line Lender shall be entitled to recover from such Revolving Credit Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Revolving Credit Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A
certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv)
Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this
Section 2.04(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided
,
however
, that each Lender’s obligation to make Revolving Credit Loans pursuant to this
Section
2.04(c)
is subject to the conditions set forth in
Section 4.02
. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Company to repay Swing Line Loans, together with interest as provided herein.
(d)
Repayment of Participations
.
(i)
At any time after any Revolving Credit Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Credit Lender its Applicable Revolving Credit Percentage thereof in the same funds as those
received by the Swing Line Lender.
(ii)
If any payment received by the Swing Line Lender in respect of principal or interest on any Swing
Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in
Section 10.05
(including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)
Interest for Account of Swing Line Lender
. The Swing Line Lender shall be
responsible for invoicing the Company for interest on the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Revolving Credit Loan or risk participation pursuant to this
Section 2.04
to refinance such Revolving Credit Lender’s Applicable Revolving Credit Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account
of the Swing Line Lender.
(f)
Payments Directly to Swing Line Lender
. The Company shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
Prepayments
.
(a)
Optional
.
(i)
Each Borrower may, upon notice from the Company to the Administrative Agent pursuant to delivery to
the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Term Loans and Revolving Credit Loans in whole or in part without premium or penalty (except (x) in the case of Loans other than Base
Rate Loans, amounts payable pursuant to
Section 3.05
and (y) with respect to Term B-
1
3
Loans, as set forth in
Section 2.05(c)
);
provided
that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in
Dollars, (B) four Business Days (or five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies, and (C) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Loans
denominated in Alternative Currencies shall be in a minimum principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if
Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender
’
s Applicable Percentage of such prepayment. If such notice is given by the Company, the applicable Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any prepayment of (x) a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required
pursuant to
Section 3.05
and (y) Term B-
2
3
Loans hereunder
shall be subject to
Section 2.05(c)
. Each prepayment of the outstanding Term Loans pursuant to this
Section 2.05(a)
shall be applied (x) as among the different Classes of Term Loans, as directed by the Company and (y) with respect to a specific Class of Term Loans, to the principal
repayment installments thereof as directed by the Company. Each prepayment of other Term Loans established or extended pursuant to
Section 2.17
,
2.18
or
2.19
shall be applied as set forth in
the applicable Additional Credit Extension Amendment;
provided
that any such Additional Credit Extension Amendment shall not permit prepayments of
Extended Term Loans established pursuant to
Section 2.19
to be applied on a greater than pro rata basis than the Class of Term Loans being
extended. The prepayment of Revolving Credit Loans shall be made on a pro rata basis across all Revolving Credit Loans (except, with respect to Revolving Credit Loans established pursuant to
Section 2.17
,
2.18
or
2.19
, to the extent that any applicable Additional Credit Extension Amendment provides that the Revolving Credit Loans established thereunder shall be entitled to less than pro rata treatment). Each such
prepayment under this
Section 2.05(a)(i)
shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of
each of the relevant Facilities.
(ii)
The Company may, upon notice to the Swing Line Lender pursuant to delivery to the Swing Line Lender
of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty;
provided
that (x) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (y) any such prepayment
shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.
(b)
Mandatory Term Loan Prepayments
.
(i)
If the Company or any of its Subsidiaries receives any Net Cash Proceeds from any Casualty Event or
Disposition (other than (1) any Disposition of any property permitted by
Sections 7.05(a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
,
(g)
,
(i)
,
(j)
and
(k)
and (2) any Disposition or Casualty Event resulting in aggregate Net Cash Proceeds not
exceeding $5,000,000 in the case of any single transaction or series of related transactions), the Company shall cause to be offered to be prepaid in accordance with clause (v) below, an aggregate principal amount of Term Loans equal to 100% of
such Net Cash Proceeds within ten (10) Business Days of receipt thereof by such Person;
provided
that, with respect to any Net Cash Proceeds
realized under a Disposition described in this
Section 2.05(b)(i)
, at the election of the Company (as notified by the Company to the
Administrative Agent within ten (10) Business Days of receipt thereof), and so long as no Default shall have occurred and be continuing, the Company or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets useful in
the business of the Company or its Subsidiaries within 12 months of receipt of such Net Cash Proceeds (it being understood that if any portion of such proceeds are not so used within such 12-month period but within such 12-month period are
contractually committed to be used, then upon the termination of such contract or if such Net Cash Proceeds are not so used within 18 months of initial receipt, such remaining portion shall constitute Net Cash Proceeds as of the date of such
termination or expiry and shall be immediately applied to the prepayment of the Term Loans as set forth in this
Section 2.05(b)(i)
);
provided
,
however
, that any Net Cash Proceeds not
subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this
Section 2.05(b)(i)
.
(ii)
Upon the incurrence or issuance by the Company or any of its Subsidiaries of any Indebtedness (other
than Indebtedness expressly permitted to be incurred or issued pursuant to
Section 7.03
(other than Permitted Unsecured Refinancing Debt,
Permitted Pari Passu Refinancing Debt or Permitted Junior Priority Refinancing Debt)), the Company shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof
by the Company or such Subsidiary (such prepayments to be applied as set forth in clause (iv) below).
(iii)
Within five (5) Business Days after financial statements are required to be delivered pursuant to
Section 6.01(a)
, commencing with the fiscal year ending on December 31, 2017, the Company shall cause to be offered to be prepaid in accordance with
clause (v) below, an aggregate principal amount of Term B-
2
3
Loans equal to ((x) the Excess Cash Flow Percentage,
multiplied by
(y) the Excess Cash Flow for such fiscal year),
less
the sum of (1) the aggregate principal amount of Term Loans (or, in the case of Term Loans purchased at a discount to par, the actual amount of
the cash payments made to purchase such Term Loans) and Revolving Credit Loans (
provided
that there is an equivalent permanent reduction of
Revolving Credit Commitments) prepaid or purchased in cash pursuant to
Section 2.05(a)
or
Section 10.06(i);
(2) the aggregate principal amount of other Consolidated Funded Indebtedness (or, in the case of Consolidated Funded Indebtedness purchased at a discount to par, the actual amount of
the cash payments made to purchase such Consolidated Funded Indebtedness) secured by the Collateral on a
pari
passu
basis with the Facilities prepaid or purchased in cash (
provided
that, in the case of revolving credit commitments, there is an equivalent permanent reduction in commitments); and (3) the increase in the amount of any equity investments in a Bank Regulated Subsidiary (including Investments pursuant to
participation agreements with Bank Regulated Subsidiaries); in each case, during such fiscal year or on or prior to the 90
th
day after the end of such fiscal year (and without duplication in the next fiscal year), except to the extent
that such prepayments are funded with long-term Indebtedness (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this
Section 2.05(b)(iii)
for any prior fiscal year).
(iv)
Each prepayment of Term Loans pursuant to clauses (i) and (ii) of this
Section 2.05(b)
shall be offered and, subject to clause (35) below, applied on a pro rata basis across the Term Facilities;
provided
that (x) any Term Loans established pursuant to
Section 2.17
,
2.18
or
2.19
shall be entitled to less than their
pro rata share if and to the extent so provided for in the applicable Additional Credit Extension Amendment and (y) prepayments with the proceeds of Refinancing Term Loans shall be applied to the Term Facilities being refinanced. Each prepayment
of Term Loans pursuant to clause (iii) of this
Section 2.05(b)
shall be applied solely to the Term B-
2
3
Facility;
provided
that any Term Loans established pursuant to
Section 2.17
,
2.18
or
2.19
shall be entitled to share in such prepayment on a pro rata basis (or less than pro rata basis) as and to the extent so provided for in the applicable Additional Credit Extension
Amendment. With respect to any such Term Facility that is to receive a prepayment pursuant to this
Section 2.05(b)
, such prepayment shall be
applied to the principal repayment installments thereof as directed by the Company and each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.
(v)
With respect to each prepayment required pursuant to
Section 2.05(b)(i)
or
(iii)
,
(A)
the Company will, not later than the dates specified in
Sections 2.05(b)(i)
or
(iii)
for offering to make such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent provide notice of such offer of prepayment to each applicable Lender, (B) the Administrative Agent shall provide notice of such offer of prepayment to each applicable Lender, (C) each such Lender will have the right to refuse
such offer of prepayment by giving written notice of such refusal to the Administrative Agent within three (3) Business Days after such Lender’s receipt of notice from the Administrative Agent of such offer of prepayment (and the Company shall
not prepay any Loans of each such refusing Lender on the date that is specified in clause (D) below), (D) the Company will make all such prepayments not so refused upon the fifth Business Day after delivery of notice by the Company pursuant to
Section 2.05(b)(i)
or
(iii
) above (with such
prepayments to be applied as set forth in clause (iv) above) and (E) any prepayment refused by Lenders of Loans (such refused amounts, the “
Declined Proceeds
”)
may be retained by the Company.
(vi)
Notwithstanding any other provisions of
Section 2.05(b)(i)
or
(iii)
, (A) to the extent that any of or all the Net Cash Proceeds received by a Foreign Subsidiary giving rise to a prepayment pursuant to
Section 2.05(b)(i)
or Excess Cash Flow attributable to a Foreign Subsidiary (a “
Foreign
Prepayment Event
”) are prohibited or delayed under applicable local Law from being repatriated to the Company, or could result in directors’ liability, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not
be required to be applied to repay Loans at the times provided in
Section 2.05(b)(i)
or
(iii)
, as the case may be;
provided
that (x) the Company hereby agrees to cause the applicable Foreign Subsidiary to
promptly take all commercially reasonable actions required by the applicable local Law to permit such repatriation and (y) if the repatriation of the relevant affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local
Law, and directors’ liability could not result, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional Taxes payable or reasonably reserved against in
good faith as a result thereof) to the repayment of the Loans pursuant to
Section 2.05(b)(i)
or
(iii)
, as the case may be, and (B) to the extent that the Company has reasonably determined in good faith that repatriation of any or all of the Net Cash Proceeds or Excess Cash Flow of any Foreign
Prepayment Event would have a material adverse Tax consequence, including the consequences of related costs, fees and expenses, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary;
provided
,
further
, that to the extent that the repatriation of such
Net Cash Proceeds or Excess Cash Flow from the applicable Foreign Subsidiary would no longer have a material adverse Tax consequence, the applicable Foreign Subsidiary will promptly repatriate the applicable Net Cash Proceeds or Excess Cash Flow
and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional Taxes payable or reasonably reserved against in good faith as a result thereof) to the repayment of the Loans pursuant to
Section 2.05(b)(i)
or
(iii)
, as the case may be.
(c)
Repricing Transaction
. In the event that all or any portion of the Term B-
2
3
Loans are (x) repaid, prepaid, refinanced or replaced with any bank debt financing (including, without limitation, with Refinancing Term Loans) having a “yield” that is less than the “yield” of
the Term B-
2
3
Loans (or portion thereof) so repaid, prepaid or refinanced or (y) repriced or effectively refinanced through any waiver, consent, amendment or amendment and restatement, in
each case of clauses (x) and (y), directed at, or the result of which would be, the lowering of the “yield” of any of the Term B-
2
3
Loans, in each case of clauses (x) and (y), occurring on or prior to the six (6) month
anniversary of the
Third
Sixth
Amendment Effective Date and excluding any transaction in connection with a Change of Control (a “
Repricing Transaction
”), the Company shall pay the Term B-
2
3
Lenders (A) in the case of clause (x), a prepayment premium equal to 1.00% of the
aggregate principal amount of the Term B-
2
3
Loans so repaid, prepaid, refinanced or replaced and (B) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the Term
B-
2
3
Loans repriced or effectively refinanced through such waiver, consent, amendment or amendment and restatement. If all or any portion of the Term B-
2
3
Loans held by any Term B-
2
3
Lender is subject to mandatory assignment pursuant to
Section
10.13
as a result of, or in connection with, such Term B-
2
3
Lender not agreeing or otherwise consenting to any such waiver, consent, amendment or amendment and restatement
referred to in clause (y) above (or otherwise in connection with a Repricing Transaction) on or prior to the six (6) month anniversary of the Third Amendment Effective Date, the Company shall pay to such Term B-
2
3
Lender a fee equal to 1.00% of the principal amount of the Term B-
2
3
Loans so assigned. Such amounts shall be due and payable on the date of effectiveness
of such Repricing Transaction or mandatory assignment. In determining the “yield” applicable to the Term B-
2
3
Loans and the “yield” for any such new bank debt financing, (x) interest margin,
original issue discount (“
OID
”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Company for the account of the
Term B-
2
3
Lenders or the lenders of such new bank debt financing in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to
maturity), (y)
with respect to any Indebtedness that includes a Eurocurrency Rate “floor” or Base Rate “floor,” (i) to the extent that the Eurocurrency
Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin
for such Indebtedness for the purpose of calculating the yield and (ii) to the extent that the Eurocurrency Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the yield is being
calculated is greater than such floor, then the floor shall be disregarded in calculating the yield
and (z) customary arrangement, structuring, underwriting, amendment or commitment fees payable to the Joint Lead Arrangers (or its
affiliates) in connection with the Term B-
2
3
Facility or to one or more arrangers (or their affiliates) of such new bank debt financing shall be excluded. For the avoidance of doubt, in no
event shall the application of proceeds of an issuance of Equity Interests be deemed a Repricing Transaction.
(d)
Total Revolving Credit Outstandings
. If the Administrative Agent notifies the
Company at any time that the Total Revolving Credit Outstandings at such time exceed an amount equal to 100% (or, in the case of any such excess determined by the Administrative Agent to have resulted solely from foreign currency fluctuations,
102%) of the Revolving Credit Facility then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Revolving Credit Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate
amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Revolving Credit Facility;
provided
,
however
, that, subject to the provisions of
Section 2.03(g)(ii)
,
the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(d)
unless after the prepayment in full of the
Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be
provided in order to protect against the results of further exchange rate fluctuations.
(e)
Alternative Currency
. If the Administrative Agent notifies the Company at any time
that the Outstanding Amount of all Revolving Credit Loans denominated in Alternative Currencies at such time exceeds an amount equal to 102% of the Alternative Currency Sublimit, then, within two Business Days after receipt of such notice, the
Borrowers shall prepay Revolving Credit Loans denominated in Alternative Currencies in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency
Sublimit.
2.06
Termination or Reduction of Commitments
.
(a)
Optional
. The Company may, upon notice to the Administrative Agent, terminate the
Revolving Credit Facility, or from time to time permanently reduce the Revolving Credit Facility;
provided
that (i) any such notice shall be received by
the Administrative Agent not later than 12:00 noon five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Company shall not terminate or reduce the Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Revolving Credit
Facility, (iv) if, after giving effect to any reduction of the Revolving Credit Facility, the Alternative Currency Sublimit, the Letter of Credit Sublimit or the Designated Borrower Sublimit or the Swing Line Sublimit exceeds the amount of the
Revolving Credit Facility, in each case such sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Revolving Credit
Facility. Except as provided in clause (iv) of the immediately preceding sentence, the amount of any reduction of the Revolving Credit Facility shall not be applied to the Alternative Currency Sublimit or the Letter of Credit Sublimit unless
otherwise specified by the Company. Any reduction of the Revolving Credit Facility shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the
Revolving Credit Facility shall be paid on the effective date of such termination.
(b)
Mandatory
.
(i)
The aggregate Term A-1 Commitments shall be automatically and permanently reduced to zero on the date of the Term A-1 Borrowing.
The aggregate Term A-2 Commitments shall be automatically and permanently reduced to zero on the date of the Term A-2 Borrowing. The aggregate Term A-3 Commitments (other than the Tranche A 2019
Incremental Term A-3 Commitments
and the Tranche B 2019 Incremental Term A-3 Commitments
) shall be automatically and permanently
reduced to zero on the date of the Term A-3 Borrowing.
(ii)
The aggregate Term B-1 Commitments shall be automatically and permanently reduced to zero on the date of the Term B-1 Borrowing.
The aggregate Term B-2 Commitments shall be automatically and permanently reduced to zero on the date of the Term B-2 Borrowing.
The aggregate Term B-3 Commitments shall be automatically and permanently reduced to zero on the date of the Term B-3 Borrowing.
(iii)
Application of
Commitment Reductions; Payment of Fees
. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or the Revolving Credit Commitment under this
Section 2.06
. Upon any reduction of the Revolving Credit Facility, the appropriate Revolving Credit Commitment of each Revolving Credit Lender
having a commitment thereunder shall be reduced by such Lender’s Applicable Revolving Credit Percentage of such reduction amount. All fees in respect of the Revolving Credit Facility accrued until the effective date of any termination of the
Revolving Credit Facility shall be paid on the effective date of such termination.
2.07
Repayment of Loans
.
(a)
Term A-3 Loans
. The Company shall repay to the Term A-3 Lenders the principal
amount of all Term A-3 Loans (i) in equal quarterly payments in the amount of 1.25% of the aggregate principal amount of such Term A-3 Loans incurred (including through conversion of Term A-2 Loans) on the Fourth Amendment Effective Date on
September 30, 2018 and December 31, 2018, (ii) in equal quarterly payments in the amount of 1.2820512821% of the aggregate principal amount of the Term A-3 Loans outstanding as of the Tranche A Fifth Amendment Effective Date (after giving effect
to the Tranche A 2019 Incremental Term A-3 Loans) commencing on March 31, 2019 and on the last day of each March, June, September and December thereafter, through and including March 31, 2023 (unless the Tranche B Fifth Amendment Effective Date
has occurred, in which case through and including the Tranche B Fifth Amendment Effective Date), (iii) if the Tranche B Fifth Amendment Effective Date has occurred, in equal quarterly payments in the amount equal to the percentage set forth in
clause (ii), as adjusted by the Company and the Administrative Agent to ensure the fungibility of the Term A-3 Loans, of the aggregate principal amount of the Term A-3 Loans outstanding as of the Tranche B Fifth Amendment Effective Date (after
giving effect to the Tranche B 2019 Incremental Term A-3 Loans) commencing on the last day of the first calendar quarter ending after the Tranche B Fifth Amendment Effective Date and on the last day of each March, June, September and December
thereafter, through and including March 31, 2023, and (iv) on the Maturity Date for the Term A-3 Facility, the remaining outstanding principal amount of all Term A-3 Loans (in each case subject to the application of prepayments in accordance with
Section 2.06
).
(b)
Term B-
2
3
Loans
. The Company shall repay to the Term B-
2
3
Lenders the principal amount of all Term B-
2
3
Loans (i)
prior to the Third Amendment Effective Date,
in equal quarterly payments in the amount of 0.25% of
the aggregate principal amount of
such Term B-1 Loans incurred on the Closing Date commencing on September 30, 2017 and on
the last day of each March, June, September and December thereafter until the Third Amendment Effective Date, (ii) on and after the Third Amendment Effective Date, in equal quarterly payments in the amount 0.253807% of the aggregate principal
amount of all Term B-2
all Term B-3
Loans outstanding as of the
Third
Sixth
Amendment Effective Date commencing on
March 31, 2018
June 30, 2019
and on the last day of each March, June, September and December thereafter,
through and including
June 30, 2023,
March 31, 2026,
and (
iii
ii
) on the Maturity Date for the Term B-
2
3
Facility, the remaining outstanding principal amount of all Term B-
2
3
Loans (in each case subject to the application of prepayments in accordance with
Section 2.06
).
(c)
Revolving Credit Loans
. Each Borrower shall repay to the Revolving Credit Lenders
on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all Revolving Credit Loans outstanding to such Borrower on such date.
(d)
Swing Line Loans
. The Company shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date for the Revolving Credit Facility.
(e)
Incremental Term Loans; Refinancing Term Loans; Extended Term Loans
. In the event
any Incremental Term Loans, Refinancing Term Loans, Extended Term Loans or Extended Revolving Credit Loans are made, such Incremental Term Loans, Refinancing Term Loans, Extended Term Loans or Extended Revolving Credit Loans, as applicable, shall
be repaid by the Company in the amounts and on the dates set forth in the Additional Credit Extension Amendment with respect thereto and on the applicable Maturity Date thereof.
2.08
Interest
.
(a)
Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at
a rate per annum equal to the Eurocurrency Rate for such Interest Period
plus
the Applicable Rate for Eurocurrency Rate Loans; (ii) each Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus
the
Applicable Rate for Base Rate Loans; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus
the Applicable Rate for Base Rate Loans.
(b)
(40) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii)
If any amount (other than principal of any Loan) payable by any Borrower under any Loan Document is
not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then, upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii)
Upon the request of the Required Lenders, while any Event of Default exists under, or immediately
upon any Event of Default under
Section 8.01(a)
resulting from any failure to pay any principal of a Loan when due or under
Section 8.01(f)
, the Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iv)
Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.
(c)
Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto, on each date such Loan is prepaid or repaid and at such other times
as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
(d)
For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the “
deemed year
”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by
multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any
interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields.
2.09
Fees
. In addition to certain fees described in
subsections (i) and (j) of
Section 2.03
:
v)
Commitment Fee
. The Company shall pay to the Administrative Agent for the account
of each Revolving Credit Lender in accordance with its Applicable Revolving Credit Percentage, a commitment fee (a “
Commitment Fee
”) in Dollars equal to
the Applicable Rate for Commitment Fees
times
the actual daily amount by which the Revolving Credit Facility exceeds the sum of (i) the Outstanding Amount
of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in
Article IV
is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with
the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate for Commitment Fees during any
quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(b)
Other Fees
. (1)
The Company shall pay to the Joint Lead Arrangers and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letter. Such fees shall
be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii)
The Company shall pay to the Lenders, in Dollars, such fees as shall have been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10
Computation of Interest and Fees; Retroactive Adjustments
of Applicable Rate
.
(a)
All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the
basis of a 365-day year), or, in the case of interest in respect of Revolving Credit Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid;
provided
that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a)
, bear interest for one
day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. With respect to all non-LIBOR Quoted Currencies, the calculation of the applicable
interest rate shall be determined in accordance with market practice.
(b)
If, as a result of any restatement of or other adjustment to the financial statements of the Company or for any other reason, the Company or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, each Borrower shall
immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual
or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess
of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C
Issuer, as the case may be, under
Section 2.03(c)(iii)
,
2.03(i)
or
2.08(b)
or under
Article VIII
. The Borrowers’ obligations
under this paragraph shall survive the termination of the Revolving Credit Facility and the repayment of all other Obligations hereunder for a period of thirty days after the date of delivery of the Company’s annual audited financial statements
that include the period during which termination and repayment occurred.
2.11
Evidence of Debt
.
(a)
The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and
payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
Upon the request of any Lender to a Borrower made through the Administrative Agent, such Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note or Notes, which shall evidence such Lender’s Loans to such
Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
(b)
In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and
records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12
Payments Generally; Administrative Agent’s Clawback
.
(a)
General
. All payments to be made by the Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by the Borrowers
hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent
’
s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on
Loans denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in
Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this
Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of
the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the Administrative Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by any Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)
(i)
Funding by Lenders; Presumption by Administrative Agent
. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any Revolving Credit Borrowing of Eurocurrency Rate Loans (or, in the case of any Revolving Credit Borrowing of Base Rate Loans, prior to 12:00 noon on
the date of such Revolving Credit Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Revolving Credit Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with
Section 2.02
(or, in the case of a Revolving Credit Borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by
Section 2.02
) and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Revolving Credit Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree
to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and
(B) in the case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans or in the case of Alternative Currencies in accordance with such market practice, in each case, as applicable. If such Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender
pays its share of the applicable Revolving Credit Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Revolving Credit Loan included in such Revolving Credit Borrowing. Any payment by such Borrower shall
be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)
Payments by
Borrowers; Presumptions by Administrative Agent
. Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders
or the L/C Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under
this subsection (b) shall be conclusive, absent manifest error.
(c)
Failure to Satisfy Conditions Precedent
. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in the foregoing provisions of this
Article II
, and such
funds are not made available to such Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV
are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)
Obligations of Lenders Several
. The obligations of the Lenders hereunder to make
Term Loans and Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to
Section 10.04(c)
are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under
Section 10.04(c)
on
any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and, except as provided in
Section 2.15(a)(iv)
,
no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under
Section 10.04(c)
.
(e)
Funding Source
. Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
2.13
Sharing of Payments by Lenders
. Subject in all
cases to
Section 10.08
, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of
or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its
pro
rata
share
thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations
and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans and other amounts owing them;
provided
that:
(i)
if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations
shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)
the provisions of this
Section 2.13
shall not be
construed to apply to (x) any payment made by a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant.
Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct
creditor of such Borrower in the amount of such participation.
2.14
Designated Borrowers
.
(a)
The Company may at any time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), request that any Material
Subsidiary of the Company (other than a non-Wholly-Owned Subsidiary) (an “
Applicant
Borrower
”) become a Designated Borrower to receive Revolving Credit Loans hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement
in substantially the form of
Exhibit K
(a “
Designated Borrower Request and
Assumption Agreement
”). The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein (i) the Administrative Agent and the Lenders that are to
provide Commitments and/or Loans in favor of an Applicant Borrower must each agree to such Applicant Borrower becoming a Designated Borrower and, (ii) for any Applicant Borrower, the Administrative Agent and the Lenders shall have received (x)
not more than 5 Business Days after the Company’s initial notice required above, the documentation and other information that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the USA
PATRIOT Act and the Beneficial Ownership Regulation and (y) such supporting resolutions, incumbency certificates, opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the Administrative
Agent, as may be required by the Administrative Agent or the Required Revolving Credit Lenders in their reasonable discretion, and Notes signed by such new Borrowers to the extent any Lenders so require (the requirements set forth in the
foregoing clauses (i) and (ii), the “
Designated Borrower Requirements
”). If the Designated Borrower Requirements are met, the Administrative Agent shall
send a notice in substantially the form of
Exhibit L
(a “
Designated
Borrower Notice
”) to the Company and the Revolving Credit Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to
permit such Designated Borrower to receive Revolving Credit Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this
Agreement;
provided
that no Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five
Business Days after such effective date unless the Administrative Agent otherwise consents.
(b)
The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary shall be joint and several in nature. The Obligations of all Designated Borrowers
that are Foreign Subsidiaries and of the Specified Designated Borrower shall be several in nature.
(c)
The Specified Designated Borrower, WEX International Holdings and each Subsidiary of the Company that
becomes a “Designated Borrower” pursuant to this
Section 2.14
, hereby irrevocably appoints the
Company as its agent for all purposes relevant to this Agreement, each of the other Loan Documents and all other documents and electronic platforms entered into in connection herewith, including (i) the giving and receipt of notices, (ii) the
execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any
acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the
Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed
to have been delivered to each Designated Borrower.
(d)
The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of
any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.
(e)
Any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment hereunder in respect of any Loans requested to be made by such Lender to a
Designated Borrower not organized under the laws of the United States or any State thereof, by causing an Affiliate of such Lender to act for such Lender to make such Loans to such Designated Borrower in the place and stead of such Lender;
provided
that in no event shall the Lender’s exercise of such option increase the costs or expenses or otherwise increase or change the obligations of the
Borrowers under this Agreement.
(f)
The Company may not designate a Designated Borrower (other than the Specified Designated Borrower) in any jurisdiction other than the United States in which any Revolving
Credit Lender is not legally permitted to make Credit Extensions.
2.15
Defaulting Lenders
.
(a)
Adjustments
. Notwithstanding anything to the contrary contained in this Agreement,
if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)
Waivers and Amendments
. That Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
Section 10.01
.
(ii)
Reallocation of Payments
. Any payment of principal,
interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article
VIII
or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to
Section 10.08
),
shall be applied at such time or times as may be determined by the Administrative Agent as follows:
first
, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder;
second
, to the payment on a pro rata basis of any amounts owing by
that Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder;
third
, if so determined by the Administrative Agent or requested by
the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit;
fourth
, as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent;
fifth
, if so determined by the Administrative Agent and the
Company,
to be held in a non-interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Lender to fund Loans
under this Agreement;
sixth
, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement;
seventh
, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a
court of competent jurisdiction obtained by the Borrowers against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and
eighth
, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided
that
if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the
conditions set forth in
Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this
Section 2.15(a)(ii)
shall be deemed paid to and
redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)
Certain Fees
. That Defaulting Lender (x)
shall not be entitled to receive any commitment fee pursuant to
Section 2.09(a)
for any period during which that Lender is a Defaulting Lender (and the
Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in
Section 2.03(i)
.
(iv)
Reallocation of Applicable Percentages to Reduce Fronting Exposure
.
During any period in which there is a Defaulting Lender that is a Revolving Credit Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender that is a Revolving Credit Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to
Sections 2.03
and
2.04
, the “Applicable Percentage” of the Revolving Credit Facility of each such non-Defaulting Lender shall be computed without giving effect to the Revolving Credit Commitment of that Defaulting Lender;
provided
that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of
Default exists (
provided
that on any date thereafter during such period, to the extent that such Default or Event of Default has been cured or waived, such
reallocation shall occur on such later date); and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any,
of (1) the Revolving Credit Commitment of that non-Defaulting Lender
minus
(2) the aggregate Outstanding Amount of the Revolving Credit Loans of that
Lender. Subject to
Section 10.26
, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting
Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(b)
Defaulting Lender Cure
. If the Company, the Administrative Agent, Swing Line Lender
and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Revolving Credit Loans of the
other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis
by the Lenders in accordance with their Applicable Percentages (without giving effect to
Section 2.15(a)(iv)
), whereupon that Lender will cease to be a
Defaulting Lender;
provided
that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers
while that Lender was a Defaulting Lender;
provided
,
further
,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.
2.16
Designated Lenders
. Each of the Administrative
Agent, the L/C Issuer and each Lender at its option may make any Credit Extension or otherwise perform its obligations hereunder through any Lending Office (each, a “
Designated
Lender
”);
provided
that any exercise of such option shall not affect the obligation of such Borrower to repay any Credit Extension in
accordance with the terms of this Agreement. Any Designated Lender shall be considered a Lender;
provided
that in the case of an Affiliate or branch of a
Lender, all provisions applicable to a Lender shall apply to such Affiliate or branch of such Lender to the same extent as such Lender.
2.17
Incremental Commitments
.
(a)
Company Request
. After the Closing Date the Company may by written notice to the
Administrative Agent request (x) commitments (each, an “
Incremental Term Increase
”) to increase the aggregate principal amount of any existing Term
Facility or to establish one or more new Term Facilities (each, an “
Incremental Term Facility
”) and/or (y) commitments (each, an “
Incremental Revolving Increase
”) to increase the Revolving Credit Commitments under any existing Revolving Credit Facility or to establish one or more new revolving facilities
(each, an “
Incremental Revolving Credit Facility
” and, together with any Incremental Term Increase, Incremental Term Facility and Incremental Revolving
Increase, the “
Incremental Facilities
”) not to exceed the Incremental Cap available at the time any such Incremental Facility is funded or established, as
applicable, from one or more lenders willing to provide such Incremental Facility in their sole discretion;
provided
that each new lender under an
Incremental Revolving Credit Facility or Incremental Revolving Increase shall be subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld, conditioned or
delayed) to the extent the same would be required for an assignment under
Section 10.06
. Each such notice shall specify (i) the date (each, an “
Incremental Effective Date
”) on which the Company proposes that the Incremental Facility shall be effective, which shall be a date not less than 10 Business
Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period approved by the Administrative Agent) and (ii) the identity of each Eligible Assignee to whom the Borrower proposes any portion of such
Incremental Facility be allocated and the amounts of such allocations;
provided
that any existing Lender approached to provide all or a portion of the
Incremental Facility may elect or decline, in its sole discretion, to provide such Incremental Facility. Each Incremental Facility shall be in an aggregate amount of $50,000,000 or any whole multiple of $5,000,000 in excess thereof (
provided
that such amount may be less than $50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Incremental
Facilities set forth in above).
(b)
Conditions
. Each Incremental Facility shall become effective as of the Incremental
Effective Date;
provided
that:
(i)
each of the conditions set forth in
Section 4.02
shall be satisfied;
provided
that, in the case of
Section 4.02(a)
, to the extent such
Incremental Facility is being incurred to fund a Permitted Acquisition, such condition shall be limited to the Specified Representations;
(ii)
as of the last day of the most recently ended Test Period, on a Pro Forma Basis after giving effect to the incurrence of any Incremental Facility,
any acquisition or investment consummated in connection therewith and all other appropriate
pro
forma
adjustments (but (x) without netting any cash proceeds from such incurrence and (y) treating any proposed Incremental Revolving Credit Facility or proposed Incremental Revolving Increase as fully
drawn), the Company would be in compliance with
Section 7.11
; and
(iii)
the Company shall deliver or cause to be delivered officer’s certificates and legal opinions of the type delivered on the Closing Date to the extent
reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent.
(c)
Terms of Incremental Facilities
. The terms and provisions of the Incremental
Facilities shall be as follows:
(i)
the terms and provisions of (x) Revolving Credit Loans made pursuant to an Incremental Revolving Increase shall be identical to the Revolving Credit Loans under the Revolving
Credit Facility subject to such increase and (y) the Term Loans made pursuant to an Incremental Term Increase shall be identical to the Term Loans under the Term Facility subject to such increase, in each case, other than with respect to upfront
fees and customary arranger fees;
(ii)
(x) maturity date of any Incremental Term A Facility shall be no earlier than the maturity date for the Term A-3 Facility, (y) the maturity date of
any Incremental Term B Facility shall be no earlier than the maturity date for the Term B-
2
3
Facility
and (z) the maturity date of any Incremental Revolving Credit Facility shall be no earlier than the maturity date for the Revolving Credit Facility;
(iii)
the amortization schedule for each Incremental Term Facility shall be determined by the Borrower and the Lenders of such Incremental Facility;
provided
that (x) the Weighted Average Life to Maturity of any Incremental Term A Facility shall be no shorter than the Weighted Average Life to Maturity of
the Term A-3 Facility and (y) the Weighted Average Life to Maturity of any Incremental Term B Facility shall be no shorter than the Weighted Average Life to Maturity of the Term B-
2
3
Facility;
(iv)
the Applicable Rate, interest margin, upfront fees and OID for each Incremental Facility shall be determined by the Borrower and the Lenders of such
Incremental Facility;
provided
that in the event that the “yield” of any Incremental Term B Facility after the
Third
Sixth
Amendment Effective Date exceeds the “yield” for the Term B-
2
3
Facility on the
Third
Sixth
Amendment Effective Date by more than 50 basis points, then the Applicable Rate for the Term B-
2
3
Facility shall be increased to the extent necessary so that the “yield” for the
Incremental Term B Facility is not more than 50 basis points higher than the “yield” for the Term B-
2
3
Facility;
provided
,
further
, that in determining the “yield” applicable to the Term B-
2
3
Facility and the “yield” for the
Incremental Term B Facility, (x) interest margin, Eurocurrency Rate floor, Base Rate floor, OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Company for the account of the Lenders of the Term B-
2
3
Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) as part of the “yield” of the Term B-
2
3
Facility, and interest margin, Eurocurrency Rate floor, Base Rate floor, OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Company for the account of
the Lenders of the Incremental Term B Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) as part of the “yield” of the Incremental Term B Facility (y)
customary arrangement, structuring, underwriting, amendment or commitment fees payable to the Joint Lead Arrangers (or their affiliates) in connection with the Term B-
2
3
Facility or to one or
more arrangers (or their affiliates) of the Incremental Term B Facility shall be excluded, and (z) if the Eurocurrency Rate or Base Rate floor for the Incremental Term B Facility is greater than the Eurocurrency Rate or Base Rate floor,
respectively, for the Term B-
2
3
Facility, the difference between such floor for the Incremental Term B Facility and the existing Term B-
2
3
Facility shall be equated to an increase in the “yield” for purposes of this clause (iv);
(v)
each Incremental Facility shall be secured by a
pari passu
lien on the
Collateral securing the Facilities on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;
(vi)
any Incremental Revolving Credit Facility shall be on terms and pursuant to documentation as determined by the Company and the lenders providing
such Incremental Revolving Credit Facility agree;
provided
that to the extent the terms and documentation with respect to any Incremental Revolving Credit
Facility are not consistent with the existing Revolving Credit Facility (except with respect to matters contemplated by clauses (ii) and (iv) above), the terms, conditions and documentation of any such Incremental Revolving Credit Facility shall
be reasonably satisfactory to the Administrative Agent; and
(vii)
any Incremental Term Facility shall be on terms and pursuant to documentation as determined by the Company and the lenders providing
such Incremental Term Facility agree;
provided
that to the extent the terms and documentation with respect to any Incremental Term Facility are not
consistent with the existing Term Loan Facilities (except with respect to matters contemplated by clauses (ii), (iii) and (iv) above), the terms, conditions and documentation of any such Incremental Term Facility shall be reasonably satisfactory
to the Administrative Agent.
(d)
Additional Credit Extension Amendment
. The Incremental Facilities shall be
documented by an Additional Credit Extension Amendment executed by the Persons providing the Incremental Facilities (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the
Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the
provisions of this
Section 2.17
.
(e)
Adjustment of Revolving Credit Loans
. In the case of an Incremental Revolving
Increase, then each Revolving Credit Lender that is acquiring a Revolving Credit Commitment thereunder on the Incremental Effective Date shall make a Revolving Credit Loan, the proceeds of which will be used to prepay Revolving Credit Loans of
the other Revolving Credit Lenders immediately prior to such Incremental Effective Date, so that, after giving effect thereto, the Revolving Credit Loans outstanding are held by the Revolving Credit Lenders pro rata based on their Revolving
Credit Commitments after giving effect to such Incremental Effective Date. If there is a new borrowing of Revolving Credit Loans on such Incremental Effective Date, the Revolving Credit Lenders after giving effect to such Incremental Effective
Date shall make such Revolving Credit Loans in accordance with
Section 2.01(
f
g
)
.
(f)
Making of New Term Loans
. On any Incremental Effective Date on which new
Commitments for Term Loans are effective, subject to the satisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a Term Loan to the Company in an amount equal to its new Commitment.
(g)
Equal and Ratable Benefit
. The Loans and Commitments established pursuant to this
Section 2.17
shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents,
and shall, without limiting the foregoing, benefit equally and ratably from the Guaranties and security interests created by the Collateral Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to
ensure and/or demonstrate that the Lien and security interests granted by the Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Class of Loans or any such new
Commitments.
(h)
This
Section 2.17
shall supersede any provisions in
Section 2.12
or
Section 10.01
to the contrary.
2.18
Refinancing Facilities
.
(a)
At any time after the Closing Date, the Company may obtain Credit Agreement Refinancing Indebtedness in respect of (i) all or any portion of any Class of Term Loans then
outstanding under this Agreement (which for purposes of this clause (i) will be deemed to include any then outstanding Term Loans established pursuant to an Additional Credit Extension Amendment) or (ii) all or any portion of the Revolving Credit
Loans (or unused Revolving Credit Commitments) under this Agreement (which for purposes of this clause (ii) will be deemed to include any then outstanding Revolving Credit Loans or Revolving Credit Commitments established pursuant to an
Additional Credit Extension Amendment), in the form of (x) other Term Loans (“
Refinancing Term Loans
”) or (y) other Revolving Credit Loans (“
Refinancing Revolving Credit Loans
”) or other Revolving Credit Commitments (“
Refinancing
Revolving Credit Commitments
”), as the case may be, in each case pursuant to an Additional Credit Extension Amendment;
provided
that the
Net Cash Proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, substantially concurrently with the incurrence thereof, to the prepayment of outstanding Term Loans or reduction of Revolving Credit Commitments being so
Refinanced, as the case may be. The effectiveness of any Additional Credit Extension Amendment establishing Credit Agreement Refinancing Indebtedness shall be subject to the satisfaction on the date thereof of each of the conditions set forth in
Section 4.02
and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions,
officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under
Section 4.01
(other than changes to such
legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). Any Credit Agreement Refinancing Indebtedness incurred under this
Section 2.18
shall be in an aggregate principal amount that is not less than $10,000,000 and an integral multiple of $1,000,000 in excess thereof (in each case unless the
Company and the Administrative Agent otherwise agree). Any Additional Credit Extension Amendment establishing Credit Agreement Refinancing Indebtedness may provide for the issuance of letters of credit or the provision of swing line loans
pursuant to any Revolving Credit Commitments of Credit Agreement Refinancing Indebtedness established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swing Line Loans under the Revolving
Credit Commitments;
provided
that no L/C Issuer or Swing Line Lender shall be required to act as “L/C issuer” or “swing line lender” under any such
Additional Credit Extension Amendment without its written consent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that,
upon the effectiveness of any Additional Credit Extension Amendment establishing Credit Agreement Refinancing Indebtedness, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms
of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Term Loans, Revolving Credit Loans, Revolving Credit Commitments and/or Term
Commitments). Any Additional Credit Extension Amendment establishing Credit Agreement Refinancing Indebtedness may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this
Section 2.18
.
(b)
This
Section 2.18
shall supersede any provisions in
Section 2.12
or
Section 10.01
to the contrary.
2.19
Amend and Extend Transactions
(a)
The Company may, by written notice to the Administrative Agent from time to time, request an extension (each, an “
Extension
”) of the maturity date of any Loans and Commitments to the extended maturity date specified in such notice. Such notice shall (i) set forth the amount of the applicable Class of Revolving Credit
Commitments and/or Term Loans that will be subject to the Extension (which shall be in a minimum amount of $100,000,000), (ii) set forth the date on which such Extension is requested to become effective (which shall be not less than ten (10)
Business Days nor more than sixty (60) days after the date of such Extension notice (or such longer or shorter periods as the Administrative Agent shall agree in its sole discretion)) and (iii) identify the relevant Class of Revolving Credit
Commitments and/or Term Loans to which such Extension relates. Each Lender of the applicable Class of Revolving Credit Commitments and/or Term Loans shall be offered (an “
Extension Offer
”) an opportunity to participate in such Extension on a pro rata basis and on the same terms and conditions as each other Lender of such Class of Revolving Credit Commitments and/or Term Loans pursuant to
procedures established by, or reasonably acceptable to, the Administrative Agent and the Company. If the aggregate principal amount of Revolving Credit Commitments or Term Loans in respect of which Lenders shall have accepted the relevant
Extension Offer shall exceed the maximum aggregate principal amount of Revolving Credit Commitments or Term Loans, as applicable, subject to the Extension Offer as set forth in the Extension notice, then the Revolving Credit Commitments or Term
Loans, as applicable, of Lenders of the applicable Revolving Credit Commitments and/or Term Loans shall be extended ratably up to such maximum amount based on the respective principal amounts with respect to which such Lenders have accepted such
Extension Offer.
(b)
The following shall be conditions precedent to the effectiveness of any Extension: (i) the conditions set forth in
Sections 4.01(a)
and
(b)
shall be satisfied (as if the references therein to Credit Extension were replaced with
Extension), (ii) the L/C Issuer and the Swing Line Lender shall have consented to any Extension of the Revolving Credit Commitments, to the extent that such Extension provides for the issuance or extension of Letters of Credit or making of Swing
Line Loans at any time during the extended period and (iii) the terms of such Extended Revolving Credit Commitments and Extended Term Loans shall comply with paragraph (c) of this
Section 2.19
.
(c)
The terms of each Extension shall be determined by the Company and the applicable extending Lenders and set forth in an Additional Credit Extension Amendment;
provided
that (i) the final maturity date of any Extended Revolving Credit Commitment or Extended Term Loan shall be no earlier than the Maturity Date of the
Revolving Credit Facility or the Maturity Date of the applicable Term Loans, respectively, (ii)(A) there shall be no scheduled amortization of the loans or reductions of commitments under any Extended Revolving Credit Commitments and (B) the
Weighted Average Life to Maturity of the Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the existing Term Loans, (iii) the Extended Revolving Credit Loans and the Extended Term Loans will rank
pari passu
in right of payment and with respect to security with the existing Revolving Credit Loans and the existing Term Loans and the borrower
and the guarantors of the Extended Revolving Credit Commitments or Extended Term Loans, as applicable, shall be the same as the Loan Parties with respect to the existing Revolving Credit Loans or Term Loans, as applicable, (iv) the interest rate
margin, rate floors, fees, OID and premium applicable to any Extended Revolving Credit Commitment (and the Extended Revolving Credit Loans thereunder) and Extended Term Loans shall be determined by the Company and the applicable extending
Lenders, (v)(A) the Extended Term Loans may participate on a pro rata or less than pro rata (but not greater than pro rata) basis in voluntary or mandatory prepayments with the other Term Loans of the Class being extended and (B) borrowing and
prepayment of Extended Revolving Credit Loans, or reductions of Extended Revolving Credit Commitments, and participation in Letters of Credit and Swing Line Loans, shall be on a pro rata basis with the other Revolving Credit Loans or Revolving
Credit Commitments of the Class being extended (other than upon the maturity of the non-extended Revolving Credit Loans and Revolving Credit Commitments) and (vi) the terms of the Extended Revolving Credit Commitments or Extended Term Loans, as
applicable, shall be substantially identical to the terms set forth herein with respect to the applicable Class being extended (except as set forth in clauses (i) through (v) above).
(d)
In connection with any Extension, the Company, the Administrative Agent and each applicable extending Lender shall execute and deliver to the Administrative Agent an
Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extension. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each
Extension. Any Additional Credit Extension Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the
Administrative Agent and the Company, to implement the terms of any such Extension, including any amendments necessary to establish Extended Revolving Credit Commitments or Extended Term Loans as a new Class or tranche of Revolving Credit
Commitments or Term Loans, as applicable, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Company in connection with the establishment of such new Class or
tranche (including to preserve the pro rata treatment of the extended and non-extended Classes or tranches and to provide for the reallocation of Total Revolving Credit Outstandings upon the expiration or termination of the commitments under any
Class or tranche), in each case on terms consistent with this
Section 2.19
.
(e)
This
Section 2.19
shall supersede any provision in
Section 2.12
or
Section 10.01
to the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01
Taxes
.
(a)
Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes
. (i)
Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the
good faith discretion of the Administrative Agent or the Company) require the deduction or withholding of any Tax from any such payment by the Administrative Agent, a Borrower or other applicable withholding agent, then the applicable withholding
agent shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.
(ii)
If any Borrower, the Administrative Agent or other applicable withholding agent shall be
required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the applicable withholding agent shall withhold or make such deductions as are
determined by the withholding agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the applicable withholding agent shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Borrower shall be increased as necessary so that after
any required withholding or the making of all required deductions for Indemnified Taxes (including deductions for Indemnified Taxes applicable to additional sums payable under this
Section 3.01
) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(iii)
If any Borrower, the Administrative Agent or other applicable withholding agent shall be
required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) such withholding agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based
upon the information and documentation it has received pursuant to subsection (e) below, (B) such withholding agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental
Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions for Indemnified Taxes (including deductions for Indemnified Taxes applicable to additional sums payable under this
Section
3.01
) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b)
Payment of Other Taxes by the Borrowers
. Without limiting the provisions of
subsection (a) above, the Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c)
Tax Indemnifications
. (i) Each of the Borrowers shall, and does hereby indemnify
each Recipient, and shall make payment in respect thereof within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this
Section 3.01
) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. If a Borrower determines in its reasonable judgment that a reasonable basis
exists for contesting an Indemnified Tax or Other Tax, the Administrative Agent, any Lender, or the L/C Issuer, as the case may be, shall reasonably cooperate with such Borrower in challenging such Indemnified Tax or Other Tax. A reasonably
detailed certificate as to the amount of such payment or liability delivered to the Company by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the
L/C Issuer, shall be conclusive absent manifest error. Each of the Borrowers shall, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after written demand therefor, for any amount that
a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to
Section 3.01(c)(ii)
below. Any
such claim against a Borrower must be made within 90 days of the payment to which such claim relates.
(ii)
Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and shall make payment
in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer (but only to the extent that any Borrower has not already indemnified the
Administrative Agent for such Indemnified Taxes and without limiting the obligation of such Borrower to do so), (y) the Administrative Agent and the Borrowers, as applicable, against any Taxes attributable to such Lender’s failure to comply with
the provisions of
Section 10.06(d)
relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Borrowers, as
applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Borrower in connection with any Loan Document, and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error. Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case
may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).
(d)
Evidence of Payments
.
Upon request by a Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by any Borrower or by the Administrative Agent to a Governmental Authority as provided in this
Section 3.01
, such Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such Borrower, as the case may be, the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to such Borrower or
the Administrative Agent, as the case may be.
(e)
Status of Lenders; Tax Documentation
. (i) Any Lender that is entitled to an
exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Company and the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the
Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or the taxing authorities of a jurisdiction pursuant to such applicable law or reasonably requested by the Company or the
Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation either (A) set forth in
Sections 3.01(e)(ii)(A)
,
(B)
and
(D)
below or (B) required by applicable law other than the Code or the taxing authorities of the jurisdiction pursuant to such applicable law to comply with the requirements for
exemption or reduction of withholding tax in that jurisdiction) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would
materially prejudice the legal or commercial position of such Lender.
(ii)
Without limiting the generality of the foregoing, in the event that a Borrower is a U.S. Person,
(a)
any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of IRS Form W 9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(b)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company on behalf of such Borrower or the Administrative Agent),
whichever of the following is applicable:
(I)
in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the
United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to
the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “business profits” or “other income” article of such tax treaty;
(II)
executed originals of IRS Form W-8ECI;
(III)
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) a certificate substantially in the form of
Exhibit M-1
to the effect that such Foreign Lender is not a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code
(a “
U.S. Tax Compliance Certificate
”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or
(IV)
to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form
W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of
Exhibit M-2
or
Exhibit M-3
, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable;
provided
that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of
Exhibit M-4
on behalf of each such direct and indirect partner;
(
c
)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to
the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with
such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(
d
)
if a payment made to a Lender under any Loan Document would be subject to U.S.
federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to
the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to
FATCA after the date of this Agreement.
(iii)
Each Lender agrees that if any form or certification it previously delivered pursuant to this
Section 3.01
expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and
the Administrative Agent in writing of its legal inability to do so.
(iv)
A Treaty Lender and a Designated Borrower that is resident in the United Kingdom for tax purposes or
any Designated Borrower or Foreign Subsidiary Guarantor that is making payments of interest which arise in the United Kingdom shall cooperate in completing any procedural formalities necessary for the Designated Borrower or the Foreign Subsidiary
Guarantor, as the case may be, to obtain authorization to make payments to the Treaty Lender with respect to a Loan to the Designated Borrower or with respect to a Foreign Subsidiary Guarantor without or with a reduction of withholding Tax.
Without limiting the generality of the foregoing, in the event that a Designated Borrower is resident in the United Kingdom for tax purposes:
(
a
)
any Treaty Lender that holds a passport under the UK HM Revenue & Customs DT
Treaty Passport Scheme, and which wishes that scheme to apply to this Agreement, shall notify its scheme reference number and its jurisdiction of tax residence to such Designated Borrower and the Administrative Agent within 30 days of such
Designated Borrower becoming a Designated Borrower hereunder, if the Treaty Lender is a Lender as of such date, and in the Assignment and Assumption, if the Treaty Lender becomes a Lender after such date;
(
b
)
if a Lender has notified its scheme reference number and its jurisdiction of tax
residence in accordance with
Section 3.01(e)(iv)(A)
, the relevant Designated Borrower shall file a duly completed Form DTTP2 to HM Revenue & Customs
within 30 days of such notification and deliver a copy of the completed Form DTTP2 to the relevant Lender and Administrative Agent;
provided
that the
failure by such Designated Borrower to file the form DTTP2 with regard to a particular Lender shall not negate such Designated Borrower’s obligations with regard to the UK tax gross up/indemnity provisions contained in this Agreement;
(c
)
if a Lender has not notified its scheme reference number and jurisdiction of tax
residence in accordance with
Section 3.01(e)(iv)(A)
, no Designated Borrower shall make any filing or notification relating to the UK HMRC DT Treaty
Passport Scheme in respect of that Lender or its participation in any Loan unless the Lender otherwise agrees;
(
d
)
such Designated Borrower shall cooperate with the Lender in completing any
additional procedural formalities necessary for that Designated Borrower to obtain authorisation to make that payment without or with a reduction of withholding Tax; and
(
e)
Each Treaty Lender shall provide new details (or successor details) to the
Designated Borrower and Administrative Agent upon the expiration or obsolescence of any previously delivered details.
(f)
Treatment of Certain Refunds
. Unless required by applicable Laws, at no time shall
the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the
account of such Lender or the L/C Issuer, as the case may be. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund or credit of any Taxes as to which it has been indemnified by any Borrower
or with respect to which any Borrower has paid additional amounts pursuant to this
Section 3.01
, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Borrower under this
Section 3.01
with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund or credit),
provided
that each Borrower, upon the request of the Recipient, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will
the applicable Recipient be required to pay any amount to such Borrower pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax
subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be
construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person.
(g)
Survival
. Each party’s obligations under this
Section 3.01
shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the
termination of the Revolving Credit Commitments and the repayment, satisfaction or discharge of all other Obligations.
3.02
Illegality
. If any Lender determines that any Law
has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurocurrency Rate (whether
denominated in Dollars or an Alternative Currency) or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Company through the Administrative Agent, (i) any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars or Canadian Dollars, to convert Base Rate Loans to Eurocurrency Rate Loans, shall be suspended, and (ii) if such notice asserts
the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if
necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Company that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Canadian Dollars or Dollars, convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on which the Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the
Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender that
it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
3.03
Inability to Determine Rates
.
(a)
If in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof, (i) the Administrative Agent determines that (A) deposits (whether
in Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (B) adequate and reasonable means do
not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency) or in connection with an existing or proposed Base
Rate Loan or (C) a fundamental change has occurred in the foreign exchange or interbank markets with respect to such Alternative Currency (including, without limitation, changes in national or international financial, political or economic
conditions or currency exchange rates or exchange controls) which makes the funding or maintaining of Loans in such Alternative Currency impractical for the Appropriate Lenders (in each case with respect to clause (i), “
Impacted Loans
”), or (ii) the Administrative Agent or the Appropriate Lenders determine that for any reason Eurocurrency Rate for any requested Interest Period with respect to a
proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to
make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended (to the extent of the affected Eurocurrency Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding
sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of
the Appropriate Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies (to the
extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in Dollars in the amount specified therein.
(b)
Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this
Section 3.03
, the Administrative Agent in consultation with the Borrower and the Appropriate Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate
of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a)(i) of this
Section 3.03
, (2) the Administrative Agent or the Appropriate Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to
such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or
fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such
Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(c)
Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent
manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i)
adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period because the LIBOR Screen Rate is not available or published on a current
basis and such circumstances are unlikely to be temporary; or
(ii)
the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement
identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “
Scheduled Unavailability Date
”), or
(iii)
syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as
applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of
such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein)(or
other LIBOR Quoted Currency), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “
LIBOR Successor Rate
”), together with any proposed LIBOR Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. (New York
time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative
Agent written notice that such Required Lenders do not accept such amendment.
If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled
Unavailability Date has occurred (as applicable),
the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x)
the obligation of the Lenders to make or maintain Eurocurrency Rate Loans denominated in a LIBOR Quoted Currency shall be suspended, (to the extent of the affected Eurocurrency Rate Loans or Interest Periods), and (y) the Eurocurrency Rate
component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in a LIBOR
Quoted Currency (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a committed borrowing of Base Rate Loans (subject to the foregoing
clause (y)) in the amount specified therein.
Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such
LIBOR Successor Rate be less than zero for purposes of this Agreement.
3.04
Increased Costs; Reserves on Eurocurrency Rate Loans
.
(a)
Increased Costs Generally
. If any Change in Law shall:
(i)
impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by
Section 3.04(e)
) or the L/C Issuer;
(ii)
subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded
Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)
impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency
Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing
or maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered;
provided
that no Lender or
the L/C Issuer shall be entitled to demand compensation under this clause (a) if it is not the general policy or practice of such Lender or the L/C Issuer, as the case may be, to demand it in similar circumstances under comparable provisions of
other credit agreements (it being understood that this provision shall not be construed to obligate any Lender or L/C Issuer to make available any information that, in its sole discretion, it deems confidential).
(b)
Capital Requirements
. If any Lender or the L/C Issuer determines that any Change in
Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return
on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Company will pay (or cause the
applicable Designated Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such
reduction suffered.
(c)
Certificates for Reimbursement
. A certificate of a Lender or the L/C Issuer setting
forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this
Section 3.04
and delivered to the Company shall be conclusive absent manifest error. The Company shall pay (or cause the applicable Designated Borrower to pay) such Lender or the L/C Issuer, as the case may be, the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d)
Delay in Requests
. Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to the foregoing provisions of this
Section 3.04
shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to
demand such compensation,
provided
that no Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this
Section 3.04
for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as
the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e)
Additional Reserve Requirements
.
The Company shall pay (or cause the applicable
Designated Borrower to pay) to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent demonstrable error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement
or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans (other than to the extent required to be reimbursed pursuant
to the foregoing clause (i)), such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive absent demonstrable error), which in each case shall be due and payable on each date on which interest is payable on such Loan,
provided
the Company shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs
from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest or costs
shall be due and payable 10 days from receipt of such notice.
3.05
Compensation for Losses
. Upon demand of any
Lender (with a copy to the Administrative Agent) from time to time, the Company shall promptly compensate (or cause the applicable Designated Borrower to compensate) such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a)
any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)
any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Company or the applicable Designated Borrower;
(c)
any failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled
due date or any payment thereof in a different currency; or
(d)
any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to
Section 10.13
;
excluding any loss of anticipated profits, but including any foreign exchange losses and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Company shall also pay
(or cause the applicable Designated Borrower to pay) any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower) to
the Lenders under this
Section 3.05
, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such
Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
3.06
Mitigation Obligations; Replacement of Lenders
.
(a)
Designation of a Different Lending Office
. If any Lender requests compensation
under
Section 3.04
, or requires any Borrower to pay any Indemnified Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental
Authority for the account of any Lender or the L/C Issuer pursuant to
Section 3.01
, or if any Lender gives a notice pursuant to
Section 3.02
, then at the request of the Company such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate amounts
payable pursuant to
Section 3.01
or
3.04
, as the case may be,
in the future, or eliminate the need for the notice pursuant to
Section 3.02
, as applicable, and (ii) in each case, would not subject such Lender or the
L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Company hereby agrees to pay (or cause the applicable Designated Borrower to
pay) all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.
(b)
Replacement of Lenders
. If any Lender requests compensation under
Section 3.04
, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of
any Lender pursuant to
Section 3.01
, and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with
Section 3.06(a)
, the Company may replace such Lender in accordance with
Section
10.13
.
3.07
Survival
. All
obligations of the Borrowers under this
Article III
shall survive termination of the Revolving Credit Facility, repayment of all other Obligations
hereunder, and resignation of the Administrative Agent.
3.08
Obligations Under Article III
.
The obligations under this
Article III
of each Borrower that is a Domestic Subsidiary shall be joint and several in nature. The obligations under this
Article III
of all Designated Borrowers that are Foreign Subsidiaries and of the Specified Designated Borrower shall be several in nature.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01
Conditions of Initial Credit Extension
. The
obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a)
The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or pdf copies (followed promptly by originals) unless otherwise specified,
each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory
to the Administrative Agent and each of the Lenders:
(i)
executed counterparts of (A) this Agreement, (B) the Company Guaranty, (C) the Domestic
Subsidiary Guaranty and (D) Foreign Subsidiary Guaranties from each Foreign Subsidiary Guarantor set forth on
Schedule 4.01(a)(i)
, each sufficient in
number for distribution to the Administrative Agent, each Lender and the Company;
(ii)
Notes executed by the Company in favor of each Lender requesting Notes;
(iii)
executed counterparts of (A) the U.S. Security Agreement and (B) except as provided on
Schedule 6.16
, each other Foreign Subsidiary Pledge Document, in each case of clauses (A) and (B), sufficient in number for distribution to the Administrative
Agent, each Lender and the Company, together with:
(
a
)
certificates and instruments representing (I) the certificated Equity Interests of
Domestic Subsidiaries that are Material Subsidiaries required to be delivered thereunder, accompanied by undated stock powers executed in blank, as applicable (except, in the case of EFS and its subsidiaries, where the Borrower is unable to
deliver such certificated Equity Interests after using commercially reasonable efforts to do so, in which case such certificated Equity Interests shall be delivered as promptly as practicable following the Closing Date), and (II) except as
described on
Schedule 6.16
, any other certificated Equity Interests, debt securities and promissory notes required to be delivered thereunder, accompanied
by undated stock powers or instruments of transfer executed in blank, as applicable
(
b
)
proper financing statements in form appropriate for filing under the Uniform
Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the U.S. Security Agreement, covering the Collateral described in the U.S. Security Agreement;
(
c
)
copies of UCC, United States Patent and Trademark Office and United States
Copyright Office, tax and judgment lien searches in United States search locations, copies of the charges register (if any) from Companies House in the United Kingdom for all Loan Parties incorporated in the United Kingdom, lien searches at the
greffe
of the competent commercial court in France for all Loan Parties incorporated in France, and lien searches from the Personal Property
Securities Register in Australia for all Loan Parties incorporated in Australia and the Company, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing
statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the
Administrative Agent reasonably requests, none of which encumber the Collateral covered by the Collateral Documents (other than Liens permitted pursuant to
Section
7.01
); and
(
d
)
a Perfection Certificate, in substantially the form of
Exhibit J
, duly executed by each Domestic Loan Party;
(iv)
a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement
(as each such term is defined in the U.S. Security Agreement and to the extent applicable) (together with each other intellectual property security agreement delivered pursuant to
Section 6.13
, in each case as amended, the “
U.S. IP Security Agreements
”), duly executed by each applicable Domestic Loan
Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the U.S. IP Security Agreements has been taken;
(v)
a Solvency Certificate executed by the chief financial officer of the Company;
(vi)
(A) The Historical Financial Statements and (B) the Pro Forma Financial Statements;
(vii)
such certificates of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viii)
such documents and certifications as the Administrative Agent may reasonably require to
evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing in such Loan Party’s jurisdiction of incorporation, organization or formation;
(ix)
favorable opinions of (A) Wilmer Cutler Pickering Hale and Dorr, LLP, counsel to the Loan
Parties, and in-house counsel to the Company and (B) each local counsel listed on
Schedule 4.01(a)(x)
, as to such matters concerning the Loan Parties and
the Loan Documents as the Administrative Agent may reasonably request; and
(x)
a certificate signed by a Responsible Officer of the Company certifying that the
conditions specified in
Section 4.01(f)
have been satisfied.
(b)
All accrued fees and expenses of the Administrative Agent and the Joint Lead Arrangers required to be paid on or before the Closing Date pursuant to the Commitment Letter and
the Fee Letter shall or substantially concurrently with the initial Credit Extension have been paid, including all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative
Agent) to the extent invoiced prior to or on the Closing Date.
(c)
The EFS Acquisition shall have been, or shall substantially concurrently with the funding of the Facilities be, consummated (including the Equity Issuance) in all material
respects in accordance with the terms of the Acquisition Agreement and shall not have been altered, amended or otherwise changed or supplemented or any provision waived or consented to (including any change in the purchase price) in any manner
that is materially adverse to the interests of the Lenders or the Joint Lead Arrangers without the prior written consent (not to be unreasonably withheld, delayed or conditioned) of the Joint Lead Arrangers (it being understood that (x) any
reduction of the purchase price in respect of the EFS Acquisition will not be materially adverse to the Lenders and the Joint Lead Arrangers, so long as such reduction shall be applied to reduce the amount of commitments in respect of the Term
A-1 Facility and Term B-1 Facility on a pro rata basis, and (y) any increase in the purchase price in respect of the EFS Acquisition will not be deemed to be materially adverse to the interests of the Lenders or the Joint Lead Arrangers to the
extent that cash on hand (other than as a result of borrowings under the Revolving Credit Facility) is used to fund any such increase).
(d)
The Refinancing shall have been or shall substantially concurrently with the initial Credit Extension on the Closing Date be consummated, and the Administrative Agent shall
have received, or substantially concurrently with the initial Credit Extensions on the Closing Date shall receive, (i) UCC-3 termination statements or other evidence of termination with respect to all Liens securing each of the Existing Credit
Agreement and the Existing Mustang Credit Agreements, including but not limited to documental evidence under the applicable jurisdiction of the cancellation of any such Lien and (ii) a customary “payoff letter” for each of the Existing Credit
Agreement and the Existing Mustang Credit Agreements.
(e)
Each Loan Party shall have provided the documentation and other information to the Administrative Agents that are required by regulatory authorities under applicable
“know-your-customer” rules and regulations, including the USA PATRIOT Act, at least 3 business days prior to the Closing Date to the extent such information has been requested at least 10 days prior to the Closing Date.
(f)
The Acquisition Agreement Representations shall be true and correct in all material respects, but only to the extent the failure of any Acquisition Agreement Representation to
be true and correct in all material respects gives the Company the right to terminate its obligations under the Acquisition Agreement, or to decline to consummate the EFS Acquisition pursuant to the Acquisition Agreement, and the Specified
Representations shall be true and correct in all material respects.
(g)
Except as set forth in the Company Disclosure Letter (as defined in the Acquisition Agreement) in connection with the Acquisition Agreement, during the period from December
31, 2014 to October 18, 2015, there shall not have occurred a Company Material Adverse Effect (as defined in the Acquisition Agreement as in effect on October 18, 2015). Since the date of the Acquisition Agreement, there shall not have occurred
a Company Material Adverse Effect (as defined in the Acquisition Agreement as in effect on October 18, 2015).
Without limiting the generality of the provisions of
Section 9.03(e)
, for purposes of determining compliance with the conditions specified in this
Section 4.01
,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02
Conditions to All Credit Extensions
. The
obligation of each Lender to honor any Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a)
Except for Credit Extensions on the Closing Date and subject to the limitations in
Section
2.17(b)(i)
, the representations and warranties of (i) the Borrowers contained in
Article V
and (ii) each Loan Party contained in each other
Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this
Section 4.02
,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05
shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of
Section 6.01
.
(b)
Except for Credit Extensions on the Closing Date and subject to the limitations in
Section
2.17(b)(i)
, no Default or Event of Default shall exist, or would result from such proposed Credit Extension or the application of the proceeds thereof.
(c)
The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements
hereof.
(d)
If the applicable Borrower is a Designated Borrower, then the conditions of
Section 2.14
to the designation of such Borrower as a Designated Borrower shall have been met to the satisfaction of the Administrative Agent.
(e)
In the case of a Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent, the Required Revolving Credit Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the
L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency.
Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans to
the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a)
and
(b)
have been satisfied on and as of the date of the applicable Credit Extension.
4.03
Conditions to Credit Extension to Specified Designated
Borrower
. The obligation of each Lender to make its initial Credit Extension to the Specified Designated Borrower is subject to the satisfaction of the following conditions precedent in the reasonable determination of the Administrative
Agent, and to the Administrative Agent’s notification to the Company (which shall not be unreasonably withheld or delayed) that such conditions precedent have been satisfied:
(a)
Each of the conditions set forth in
Section 4.02
shall have been satisfied.
(b)
The Administrative Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the Specified Designated Borrower, each in form and substance reasonably satisfactory to the Administrative Agent and the Required Revolving Credit Lenders:
(i)
All documents that would be required to be delivered by the Specified Designated Borrower,
the Loan Parties and other Subsidiaries under
Section 2.14
and
Section
6.13
if the Specified Designated Borrower had become a Designated Borrower on the first day following the Closing Date; and
(ii)
Notes executed by the Specified Designated Borrower in favor of each Lender requesting
such Notes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agent and the Lenders on the date of each
Credit Extension that:
5.01
Existence, Qualification and Power
. Each Loan
Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is
duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except (I) in
connection with Fundamental Changes or Dispositions made in accordance with
Sections 7.04
or
7.05
, and (II) in each case referred to in clause (a) (with respect to Immaterial Subsidiaries only), (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.02
Authorization; No Contravention
. The execution,
delivery and performance by each Loan Party and the Specified Designated Borrower of each Loan Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which
such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law in any manner that is materially adverse to the Company and its Subsidiaries, except, in each case referred to (x) in clause (b)(i), or (y) to the extent relating to any order, injunction, writ or decree of any
Governmental Authority not specifically relating to such Person or its property, in clause (b)(ii), to the extent that the same could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
5.03
Governmental Authorization; Other Consents
. No
approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person (except as has been or will be taken in connection with, and prior to, the execution and delivery of
each such document) is necessary or required in connection with the (a) execution, delivery or performance by, or enforcement against, any Loan Party or the Specified Designated Borrower of this Agreement or any other Loan Document, (b) the grant
by any Loan Party of the Liens granted by it pursuant to the Foreign Subsidiary Pledge Documents or, (c) other than filings and registrations as have been made (or, in jurisdictions in which it is not customary to make such filings or
registrations until after the delivery of the applicable security documentation, will be made promptly after the entry into the applicable Foreign Subsidiary Pledge Documents), the perfection or maintenance of the Liens created under the Foreign
Subsidiary Pledge Documents (including the first priority nature thereof).
5.04
Binding Effect
. This Agreement has been, and each
other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party and the Specified Designated Borrower that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered
will constitute, a legal, valid and binding obligation of such Loan Party or the Specified Designated Borrower, as applicable, enforceable against each Loan Party or the Specified Designated Borrower, as applicable, that is party thereto in
accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
5.05
Financial Statements; No Material Adverse Effect
.
(a)
The Historical Financial Statements set forth in clause (a) of the definition thereof (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of the Company and its Subsidiaries (or WP Mustang Holdings LLC and its Subsidiaries, as applicable) as of the date
thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) reflect or disclose all material
indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries (or WP Mustang Holdings LLC and its Subsidiaries, as applicable) as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(b)
The Historical Financial Statements set forth in clause (b) of the definition thereof (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Company and its Subsidiaries (or WP Mustang Holdings LLC and its Subsidiaries, as applicable) as of the
date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end adjustments. There is no material indebtedness or other liabilities,
direct or contingent, of the Company and its consolidated Subsidiaries (or WP Mustang Holdings LLC and its Subsidiaries, as applicable) as of the date of such financial statements, including liabilities for taxes, material commitments and
Indebtedness, to the extent required to be disclosed in accordance with GAAP that is not set forth in such Historical Financial Statements.
(c)
Since December 31, 2014, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.
(d)
The consolidated forecasted balance sheet and statements of income and cash flows of the Company and its Subsidiaries delivered pursuant to
Section 6.01(d)
were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of
such forecasts, and represented, at the time of delivery, the Company’s best estimate of its future financial condition and performance.
5.06
Litigation
.
There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Company, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Company or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby, or (b) either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
5.07
No Default
. Neither any Loan Party nor any
Subsidiary thereof is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08
Ownership of Property; Liens
. Each of the Company
and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Company and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01
.
5.09
Environmental Compliance
. The Company and its
Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Company has reasonably concluded that
such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10
Insurance
. The properties of the Company and its
Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Company, in such amounts with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Company or the applicable
Sub
sidiary operates.
5.11
Taxes
. The Company and its Subsidiaries (a) have
filed all Federal, state and other material tax returns and reports required to be filed, and (b) have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except, in the case of this clause (b), (i) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided
in accordance with GAAP or (ii) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect. There is no proposed tax assessment against the Company or any Subsidiary that would, if made, have
a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement, other than the Tax Receivable Agreement.
5.12
ERISA Compliance
.
(a)
Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to
be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been
determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the IRS. To the best knowledge of the Company, nothing has occurred that would
prevent or cause the loss of such tax-qualified status. The representations in this
Section 5.12
are qualified, with respect to Multiemployer Plans only,
as being to the knowledge of the Company.
(b)
There are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that
could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(c)
(i) No ERISA Event has occurred, and neither the Company nor any ERISA Affiliate has any knowledge of any fact, event or circumstance that could reasonably be expected to
constitute or result in an ERISA Event with respect to any Pension Plan which could reasonably be expected to result in a Material Adverse Effect; (ii) the Company and each ERISA Affiliate has met all applicable requirements under the Pension
Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Company nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment
percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither the Company nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments
which have become due that are unpaid; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA.
(d)
With respect to any Foreign Plan, none of the following events or conditions exists and is continuing that, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect: (i) substantial non-compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders; (ii) failure to be maintained, where required, in good
standing with applicable regulatory authorities; (iii) any obligation of the Company or its Subsidiaries in connection with the termination or partial termination of, or withdrawal from, any Foreign Plan; (iv) any Lien on the property of the
Company or its Subsidiaries in favor of a Governmental Authority as a result of any action or inaction regarding a Foreign Plan; (v) for each Foreign Plan which is a funded or insured plan, failure to be funded or insured on an ongoing basis to
the extent required by applicable non-U.S. law (using actuarial methods and assumptions which are consistent with the valuations last filed with the applicable Governmental Authorities) or otherwise in accordance with good practice; (vi) any
facts that, to the knowledge of the Company or any of its Subsidiaries, exist that would reasonably be expected to give rise to a dispute and any pending or threatened disputes that, to the knowledge of the Company or any of its Subsidiaries,
would reasonably be expected to result in a material liability to the Company or any of its Subsidiaries concerning the assets of any Foreign Plan (other than individual claims for the payment of benefits); (vii) failure to make all contributions
in a timely manner to the extent required by applicable non-U.S. law and (viii) any failure to obtain or retain approval or qualification by and/or due registration with the appropriate taxation, social security, supervisory, fiscal or other
applicable governmental entities in the relevant state or jurisdiction, in order to obtain tax approved, favored or qualified status in the relevant jurisdiction.
5.13
Subsidiaries; Equity Interests
. As of the Closing
Date (after giving effect to the Transactions), (a) the Company has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13
,
and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are free and clear of all Liens except those created under the Loan Documents. As of the Closing Date (after giving
effect to the Transactions), the Company has no equity investments in any other corporation or entity other than Cash Equivalents and those specifically disclosed in Part (a) and Part (b) of
Schedule 5.13
. All of the outstanding Equity Interests in the Company have been validly issued, and are fully paid and nonassessable. The Organization Documents of companies whose Equity Interests are
subject to Liens pursuant to the Collateral Documents do not restrict or inhibit any transfer of such Equity Interests or creation or enforcement of such Liens.
5.14
Margin Regulations; Investment Company Act
.
(a)
No part of the proceeds of any Loan will be used in a manner that would result in a violation of Regulation U or any of the other Regulations of the FRB. If requested by any
Lender or the Administrative Agent, the Company will furnish to the Administrative Agent and each Lender a statement to the forgoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in
Regulation U.
(b)
None of the Company, any Person Controlling the Company, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of
1940.
5.15
`
Disclosure
.
(a)
The Company has, either directly or as attached to the Company’s disclosures filed with the SEC on form 10-K or 10-Q, disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect (it being understood that
prior to the filing of the first 10-Q of the Company after the date hereof, this representation shall only relate to the Company and its Subsidiaries (other than EFS and its Subsidiaries)). No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan Party or the Specified Designated Borrower to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that, with respect to projected financial
information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(b)
As of the Fourth Amendment Effective Date, the information included in the Beneficial Ownership Certifications provided on or prior to the Fourth Amendment Effective Date is
true and correct in all respects.
As of the Sixth Amendment Effective Date, the information
included in the Beneficial Ownership Certifications provided on or prior to the Sixth Amendment Effective Date is true and correct in all respects.
5.16
Compliance with Laws
. Each Loan Party and each
Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.17
Taxpayer Identification Number; Other Identifying
Information
. The true and correct U.S. taxpayer identification number of the Company and each Designated Borrower that is a Domestic Subsidiary and a party hereto on the Closing Date
is set forth on
Schedule 10.02
. The true and correct unique identification number of the Specified
Designated Borrower and WEX International Holdings that has been issued by its jurisdiction of organization and the name of such jurisdiction are set forth on
Schedule
5.17
.
5.18
Intellectual Property; Licenses, Etc.
The Company
and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “
IP Rights
”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person. Except for instances that
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be
employed, by the Company or any Subsidiary infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Company, threatened, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.19
Representations as to Foreign Loan Parties and the
Specified Designated Borrower
.
As to each Foreign Loan Party and Specified Designated Borrower:
(a)
Such Foreign Loan Party or the Specified Designated Borrower
is
subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents to which it is a party (collectively as to such Foreign Loan Party or
the
Specified Designated Borrower, the “
Applicable Foreign Loan Party Documents
”), and the execution,
delivery and performance by such Foreign Loan Party
or Specified Designated Borrower
of the Applicable Foreign Loan Party Documents constitute
and will constitute private and commercial acts and not public or governmental acts. Neither such Foreign Loan Party,
the
Specified
Designated Borrower
,
nor any of its respective property has any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Foreign Loan Party or
the
Specified Designated Borrower is organized and existing in respect of its obligations under the Applicable Foreign Loan Party Documents;
(b)
The Applicable Foreign Loan Party Documents are in proper legal form under the Laws of the jurisdiction in which such Foreign Loan Party or
the
Specified Designated Borrower
is organized and existing for
the enforcement thereof against such Foreign Loan Party or
the
Specified Designated Borrower, as applicable, under the Laws of such
jurisdiction, and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Loan Party Documents. It is not necessary to ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Foreign Loan Party Documents that the Applicable Foreign Loan Party Documents be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in
which such Foreign Loan Party or
the
Specified Designated Borrower is organized and existing or that any registration charge or stamp or
similar tax be paid on or in respect of the Applicable Foreign Loan Party Documents or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been (or will promptly be) made or is not
required to be made until the Applicable Foreign Loan Party Document or any other document is sought to be enforced and (ii) any charge or tax as has been timely paid;
(c)
There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental Authority in or of the
jurisdiction in which such Foreign Loan Party or
the
Specified Designated Borrower is organized and existing either (i) on or by virtue of
the execution or delivery of the Applicable Foreign Loan Party Documents or (ii) on any payment to be made by such Foreign Loan Party pursuant or Specified Designated Borrower to the Applicable Foreign Loan Party Documents, except as has been
disclosed to the Administrative Agent;
(d)
For the purposes of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast Insolvency Regulation) (the “
Regulations
”), such Foreign Loan Party’s or the Specified Designated Borrower’s centre of main interest (as that term is used in Article 3(1) of the
Regulations) is situated in its jurisdiction of incorporation and it has no “establishment” (as that term is used in Article 2(h) of the Regulations) in any other jurisdiction;
(e)
The choice of governing law of the Applicable Foreign Loan Party Documents will be recognized and enforced in its Relevant Jurisdiction;
(f)
Any judgment obtained in relation to an Applicable Foreign Loan Party Document in the jurisdiction of the governing law of such Applicable Foreign Loan Party Document will be
recognized and enforced in its Relevant Jurisdiction.
(g)
The execution, delivery and performance of the Applicable Foreign Loan Party Documents executed by such Foreign Loan Party or
the
Specified Designated Borrower are, under applicable foreign exchange control regulations of the jurisdiction in which such Foreign Loan Party is organized and existing, not
subject to any notification or authorization except (i) such as have been made or obtained or (ii) such as cannot be made or obtained until a later date (
provided
that any notification or authorization described in clause (ii) shall be made or obtained as soon as is reasonably practicable).
5.20
Solvency
. Each of (a) the Company and its Subsidiaries, on a consolidated basis, and (b) WEX Bank and each other Material Bank Regulated
Subsidiary, on a stand-alone basis, is Solvent.
5.21
OFAC
. Neither the Company, nor any of its Subsidiaries, nor, to the knowledge of the Company and its Subsidiaries,
any director, officer or employee thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially
Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List or (iii) located, organized or resident in a Designated Jurisdiction.
5.22
Anti-Corruption Laws
. The Company and its
Subsidiaries have conducted their businesses in compliance in all material respects with all Anti-Corruption Laws and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
5.23
PATRIOT Act
. Neither the Company nor any of its
Subsidiaries is in violation of (i) any applicable laws relating to terrorism or money laundering, including Executive Order No. 13224 on Terrorist Financing, effective September 23, 2001 or (ii) the USA PATRIOT Act.
5.24
Use of Proceeds
. The use of proceeds of the Loans
and the Letters of Credit will not violate any Anti-Corruption Laws, any Sanctions, the USA PATRIOT Act or the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended).
5.25
Collateral Documents
.
The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a
legal, valid and enforceable first priority Lien on all rights, title and interest of the respective Loan Parties in the Collateral described therein (subject to Liens permitted by
Section 7.01
), and such Liens constitute perfected Liens on such Collateral securing the Obligations, to the extent required to be perfected under the Loan Documents.
5.26
EEA Financial Institution
. No Loan Party is an
EEA Financial Institution.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall, and shall (except in the case of the covenants set forth in
Sections
6.01
,
6.02
, and
6.03
) cause each Subsidiary to:
6.01
Financial Statements
. Deliver to the
Administrative Agent (on behalf of each Lender), in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a)
as soon as available, but in any event within 90 days (or, in the case of clause (iii) below, within 120 days) after the end of each fiscal year of the Company:
(i)
a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;
(ii)
the unaudited balance sheet of the Company (on a stand-alone basis) and related unaudited statements
of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures as of the end of and for the previous fiscal year, in reasonable detail, certified by the chief
executive officer, chief financial officer, treasurer or controller of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company in accordance with GAAP consistently applied; and
(iii)
the audited consolidated balance sheet and related consolidated statements of operations,
stockholders’ equity and cash flows of WEX Bank and each other Material Bank Regulated Subsidiary and their respective consolidated subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures as of
the end of and for the previous fiscal year, all reported on by Deloitte & Touche LLP or other independent public accountants of recognized national standing;
From and after the date on which each Designated Borrower is designated and accepted hereunder (or, in
the case of
the
Specified Designated Borrower, from and after the date on which
the
Specified Designated Borrower becomes a Designated Borrower), all financial statements shall include unaudited consolidated balance sheets, and the related consolidated statements of income
or operations, shareholders’ equity and cash flows, for such fiscal year showing the consolidated financial position and results of operations of such Designated Borrower and its respective Subsidiaries on a stand-alone basis. For the purposes
of this paragraph, WEX International Holdings shall be deemed to have been designated and accepted as a Designated Borrower hereunder on the Closing Date.
(b)
as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company:
(i)
a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief executive officer, chief financial officer, treasurer or
controller of the Company as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes; and
(ii)
the unaudited balance sheet of the Company (on a stand-alone basis) as of the end of such fiscal
quarter and related unaudited statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures as of the end of and for the previous fiscal year,
certified by the chief executive officer, chief financial officer, treasurer or controller of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes.
From and after the date on which each Designated Borrower is designated and accepted hereunder (or, in
the case of the Specified Designated Borrower, from and after the date on which the Specified Designated Borrower becomes a Designated Borrower), all such financial statements shall include consolidated balance sheets, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the fiscal year then ended, showing the consolidated financial position and results of operations of such
Designated Borrower and its respective Subsidiaries on a stand-alone basis. For the purposes of this paragraph, WEX International Holdings shall be deemed to have been designated and accepted as a Designated Borrower hereunder on the Closing
Date.
(c)
as soon as available, but in any event within the period within which WEX Bank and any other Regulated Bank that is a Material Bank Regulated Subsidiary is required to deliver
its quarterly call report with the FDIC after the end of each of the first three fiscal quarters of each fiscal year of WEX Bank and any other Regulated Bank that is a Material Bank Regulated Subsidiary, its call report and related schedules, all
certified by its chief executive officer, chief financial officer, treasurer or controller as having been prepared in accordance with FDIC requirements; and
(d)
as soon as available, but in any event at least 90 days after the beginning of each fiscal year of the Company, forecasts prepared by management of the Company, in form
satisfactory to the Administrative Agent and the Required Lenders, of consolidated balance sheets and statements of income or operations and cash flows of the Company and its Subsidiaries on a quarterly basis for such fiscal year (including the
fiscal year in which the Maturity Date occurs).
As to any information contained in materials furnished pursuant to
Section 6.02(c)
, the Company shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation
of the Company to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
6.02
Certificates; Other Information
. Deliver to the
Administrative Agent (on behalf of each Lender) or, in the case of clause (f) below, deliver to Administrative Agent or such requesting Lender:
(a)
concurrently with the delivery of the financial statements referred to in
Section 6.01(a
),
and to the extent not constituting part of the report, its independent certified public accountants pursuant to
Section 6.01(a)
, a certificate of it
independent certified public accountants certifying such financial statements;
(b)
concurrently with the delivery of the financial statements referred to in
Sections 6.01(a)
and
(b)
, a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Company;
(c)
promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Company, and
copies of all annual, regular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to
be delivered to the Administrative Agent pursuant hereto;
(d)
promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency (excluding routine comments and correspondence from such agency) regarding
financial or other operational results of any Loan Party or any Subsidiary thereof;
(e)
promptly, such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time reasonably request; and
(f)
promptly following any request therefor, such information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with
applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.
Documents required to be delivered pursuant to
Section 6.01(a)
or
(b)
or
Section
6.02(c)
(to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company
posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on
Schedule 10.02
; or (ii) on
which such documents are posted on the Company’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 (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests
the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (
i.e.
, soft copies) of
such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by
Section 6.02(b)
to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or MLPFS will make available
to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “
Borrower Materials
”) by
posting the Borrower Materials on IntraLinks or another similar electronic system (the “
Platform
”) and (b) certain of the Lenders (each, a “
Public Lender
”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective
Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all Borrower Materials that
are to be made available to Public Lenders 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; (x) by marking Borrower Materials “PUBLIC,”
the Borrowers shall be deemed to have authorized the Administrative Agent, MLPFS, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary)
with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (
provided
,
however
, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in
Section 10.07
); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative
Agent and MLPFS shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower
shall be under any obligation to mark any Borrower Materials “PUBLIC.”
6.03
Notices
. Promptly notify the Administrative Agent
and (except in the case of subsection (e) below) each Lender:
(a)
of the occurrence of any Default;
(b)
of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(c)
of any dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental Authority;
(d)
of the occurrence of any ERISA Event that could reasonably be expected to have a Material Adverse Effect;
(e)
of the incurrence or issuance of any Indebtedness by any Loan Party or any of their Subsidiaries (other than any Bank Regulated Subsidiary) in an original principal amount of
greater than $25,000,000 that is not promptly disclosed on Form 8-K filed with the SEC; and
(f)
of any material change in accounting policies or financial reporting practices by the Company or any Subsidiary, including any determination by the Company referred to in
Section 2.10(b)
.
Each notice pursuant to this
Section 6.03
shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with
respect thereto. Each notice pursuant to
Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.
6.04
Payment of Obligations
. Pay and discharge as the
same shall become due and payable, all its material obligations and liabilities which if not paid could reasonably be expected to have a Material Adverse Effect, unless the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary; and (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; other than the Liens permitted
under
Section 7.01
.
6.05
Preservation of Existence, Etc.
Preserve, renew
and maintain in full force and effect its legal existence and good standing (where such concept is recognized and has legal meaning) under the Laws of the jurisdiction of its organization except in a transaction permitted by
Section 7.04
or
7.05
; (b) take all reasonable action to maintain
all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
6.06
Maintenance of Properties
. (a) Maintain, preserve
and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and replacements
thereof except, in each case, where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.07
Maintenance of Insurance
. Maintain with
financially sound and reputable insurance companies not Affiliates of the Company, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts
as are customarily carried under similar circumstances by such other Persons. If
any portion of any Mortgaged Property (which portion contains a building) is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood
insurance has been made available under the Flood Insurance Laws, then the Company shall, or shall cause the applicable Loan Party to (a) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an
amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (b) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably
acceptable to the Administrative Agent, including evidence of annual renewals of such insurance.
6.08
Compliance with Laws
. (a)
Comply in all material respects with the requirements of all Laws (including the USA PATRIOT
Act, Anti-Corruption Laws and Sanctions) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
6.09
Books and Records
. (a) Maintain proper books of
record and account, in which full, true and correct entries in all material respects and in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company or such
Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Company or such Subsidiary, as the
case may be.
6.10
Inspection Rights
. Permit representatives and
independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Company and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance
notice to the Company;
provided
that neither the Administrative Agent nor any Lender may exercise such rights of inspection under this
Section 6.10
more often than two (2) times during any calendar year absent the existence of an Event of Default;
provided
,
further
, that when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Company at any time during normal business hours and without advance notice.
6.11
Use of Proceeds
. Use the proceeds of the Credit
Extensions for working capital purposes, acquisitions (including without limitation, the EFS Acquisition), Restricted Payments, the refinancing of Indebtedness and other general corporate purposes, in each case, not in contravention of any Law or
of any Loan Document and not in any manner that would cause any representation in
Section 5.14(a)
or
5.24
to be incorrect;
provided
that the Company shall use the proceeds of the (i) Term A-2 Loans and Term B-2
Loans made on the First Amendment Effective Date solely for the repayment of the Term A-1 Loans and Term B-1 Loans, (ii) Incremental Term B-2 Loans made on the Third Amendment Effective Date solely to repay outstanding Revolving Credit Borrowings
and fees and expenses in connection with the Third Amendment, (iii) Term A-3 Loans made on the Fourth Amendment Effective Date solely for the repayment of the Term A-2 Loans, (iv) Incremental Term A-3 Loans made on the Fourth Amendment Effective
Date for working capital purposes and to fund acquisitions, Restricted Payments, refinancing of Indebtedness and other general corporate purposes and fees and expenses in connection with the Fourth Amendment, (v) Tranche A 2019 Incremental Term
A-3 Loans made on the Tranche A Fifth Amendment Effective Date for working capital purposes and to fund acquisitions, refinancing of Indebtedness and other general corporate purposes and fees and expenses in connection with the Fifth Amendment
and
,
(vi) Tranche B 2019 Incremental Term A-3 Loans made on the Tranche B Fifth Amendment Effective Date for financing a portion of the Discovery Acquisition (as defined in the Fifth
Amendment) and fees and expenses in connection therewith and with the Fifth Amendment
and (vii)
Term B-3 Loans made on the Sixth Amendment Effective Date for the repayment of the Term B-2 Loans and for working capital and to fund acquisitions, refinancing of Indebtedness and other general corporate purposes and fees and expenses in
connection with the Sixth Amendment
.
6.12
Approvals and Authorizations
. Maintain all
authorizations, consents, approvals and licenses from, exemptions of, and filings and registrations with, each Governmental Authority of the jurisdiction in which each Foreign Loan Party is organized and existing, and all approvals and consents
of each other Person in such jurisdiction, in each case that are required in connection with the Loan Documents.
6.13
Additional Guarantors and Collateral; Redesignation of
Immaterial Subsidiaries; Designation of Stock Pledge Subsidiaries
.
(a)
The Company will cause any Person that becomes a Domestic Subsidiary after the Closing Date (other than an Excluded Domestic Guaranty Subsidiary), whether by formation,
acquisition or otherwise
(including, without limitation, upon the formation of any Subsidiary
that is a Divided LLC)
and each Domestic Subsidiary that ceases to be an Excluded Domestic Guaranty Subsidiary to take the actions described below and concurrently with the delivery of the documents referred to in clauses (i)
through (iii) below, to deliver to the Administrative Agent (x) evidence of action of such Person’s board of directors or other governing body authorizing the execution, delivery and performance thereof and (y) a favorable written opinion of
counsel for such Person, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to such Person and the Domestic Subsidiary Guaranty and such Collateral Documents as the Administrative Agent
may reasonably request:
(i)
to execute and deliver to the Administrative Agent, within 30 days after the date such Person first becomes a Domestic Subsidiary or ceases to be an Excluded Domestic Guaranty
Subsidiary (or such later date as the Administrative Agent may allow in its sole discretion), a supplement to the Domestic Subsidiary Guaranty, in form and substance satisfactory to the Administrative Agent; and
(ii)
within 30 days after the date such Person first becomes a Domestic Subsidiary or ceases to be an Excluded Domestic Guaranty Subsidiary (or such
later date as the Administrative Agent may allow in its sole discretion), cause such Domestic Subsidiary and each Domestic Loan Party that owns such Domestic Subsidiary (if it has not already done so) to, as applicable, duly execute and deliver
to the Administrative Agent supplements to the U.S. Security Agreement, Perfection Certificate, U.S. IP Security Agreements and other security and pledge agreements, as specified by and in form and substance reasonably satisfactory to the
Administrative Agent and take all actions required thereunder, including delivery of certificates representing the certificated Equity Interests in and of such Domestic Subsidiary, if any, in accordance with the terms of the U.S. Security
Agreement), securing payment of all the Obligations of such Domestic Subsidiary or such Domestic Loan Party, as the case may be, under the Loan Documents.
(b)
Upon the acquisition of any property (other than Real Property and Excluded Assets (as defined in the U.S. Security Agreement)) by any Domestic Loan Party
(including, without limitation, upon the formation of any Subsidiary that is a Divided LLC)
,
if such property shall not already be subject to a perfected first priority security interest in favor of the Administrative Agent for the benefit of the Secured Parties, then the Company shall, at the Company’s expense within 30 days after such
acquisition (or such later date as the Administrative Agent may allow in its sole discretion), cause the applicable Loan Party to take whatever action may be necessary or advisable in the opinion of the Administrative Agent to vest in the
Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on such property, enforceable against all third parties.
(c)
With respect to any Material Real Property, the Company will cause the applicable Domestic Subsidiary (x) within 60 days (or such later date as the Administrative Agent may
allow in its sole discretion) after the date such Person first becomes a Domestic Subsidiary (other than an Excluded Domestic Guaranty Subsidiary) or ceases to be an Excluded Domestic Guaranty Subsidiary, (y) within 60 days (or such later date as
the Administrative Agent may allow in its sole discretion) following acquisition of such Real Property by any Domestic Loan Party, if such property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first
priority security interest in favor of the Administrative Agent for the benefit of the Secured Parties, at the Company’s expense or (z) upon the request of the Administrative Agent following the occurrence and during the continuance of a Default,
at the Company’s expense, to execute and deliver to the Administrative Agent (unless otherwise agreed by the Administrative Agent):
(i)
counterparts of the Mortgages covering such Material Real Property duly executed, acknowledged and delivered and in form suitable for filing or recording in all filing or
recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and
pay all title insurance charges for the Mortgage Policies insuring such Mortgages, lien searches and examination charges, filing, documentary, stamp, intangible and mortgage recording taxes and other fees, costs and expenses in connection
therewith,
(ii)
fully paid American Land Title Association (“
A.L.T.A.
”)
Lender’s Extended Coverage title insurance policies or such other form as customary in the applicable jurisdiction (the “
Mortgage Policies
”), with
customary endorsements and in amounts reasonably acceptable to the Administrative Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Administrative Agent (the “
Title Company
”), insuring that the Mortgage on each Mortgaged Property is a valid and enforceable first and subsisting Lien on the property described therein, free and clear of all defects
(including, but not limited to, mechanics’ and materialmen’s Liens) encumbrances, and Liens, excepting only Permitted Encumbrances,
(iii)
American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been
paid, and dated no more than 30 days before the day required to be delivered, certified to the Administrative Agent and the Title Company in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the
jurisdiction(s) in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, the location of any easements, parking spaces, rights of way, building set-back
lines and other dimensional regulations,
(iv)
an affidavit of no change (or affidavit specifying the changes) with reference to any existing A.L.T.A surveys for each Mortgaged Property if
required by the Title Company,
(v)
an opinion of local counsel in each jurisdiction where the Mortgaged Property is located and opinions of counsel for the Borrower regarding due authorization, execution and
delivery of the Mortgages, covering such matters as the Administrative Agent may reasonably require,
(vi)
with respect to each Mortgaged Property, such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap”
indemnification) as shall be reasonably required to induce the Title Company to issue the Mortgage Policy and endorsements contemplated above,
(vii)
proper fixture filings or amendments thereto under the Uniform Commercial Code on Form UCC-1 or Form UCC-3 for filing under the
Uniform Commercial Code in the appropriate jurisdiction(s) in which the Mortgaged Properties are located to perfect the security interests in fixtures purported to be created by the Mortgages (as amended, as applicable) over the Mortgaged
Properties,
(viii)
insurance certificates and insurance endorsements with respect to property insurance as required by
Section 6.07
reasonably acceptable to the Administrative Agent,
(ix)
a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property on which
a “Building” (as defined in 12 CFR Chapter III, Section 339.2) is located, (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto),
(x)
a copy of, or certificate as to coverage under, and a declaration page relating to the flood insurance policies required by
Section 6.07
, which shall (A) be endorsed or otherwise amended to include a “standard” lender’s loss payable endorsement (as applicable); (B) name the collateral agent, on behalf of the Secured Parties,
as additional insured; (C)(1) identify the addresses of each property located in a special flood hazard area, (2) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto, (3) provide that
the insurer will endeavor to give the collateral agent forty-five (45) days’ written notice of cancellation or non-renewal and (4) otherwise be in form and substance reasonably acceptable to the collateral agent.
(d)
The Company will cause any Person that becomes a Foreign Subsidiary after the Closing Date (other than an Excluded Foreign Guaranty Subsidiary), and each Foreign Subsidiary
that ceases to be an Excluded Foreign Guaranty Subsidiary, (i) to execute and deliver to the Administrative Agent, within 30 days after the date such Person first becomes a Foreign Subsidiary or ceases to be an Excluded Foreign Guaranty
Subsidiary (or such later date as the Administrative Agent may allow in its sole discretion), a Foreign Subsidiary Guaranty in form and substance satisfactory to the Administrative Agent, and (ii) concurrently with the delivery of such Foreign
Subsidiary Guaranty, to deliver to the Administrative Agent (x) evidence of action of such Person’s board of directors or other governing body authorizing the execution, delivery and performance thereof and (y) a favorable written opinion of
counsel for such Person, in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to such Person and such Foreign Subsidiary Guaranty, as the Administrative Agent may reasonably request.
(e)
Promptly, and in any event within 30 days (or by such later date as the Administrative Agent may allow in its sole discretion) of the acquisition or formation by any Loan
Party (other than a Foreign Subsidiary) of a Foreign Subsidiary that is not an Excluded Pledge Subsidiary, or of any Foreign Subsidiary ceasing to be an Excluded Pledge Subsidiary, the Company shall cause each Domestic Loan Party that owns Equity
Interests in such Foreign Subsidiary, if such Loan Party is not already a party to the U.S. Security Agreement, to execute and deliver to the Administrative Agent (i) a supplement to the U.S. Security Agreement, in form and substance satisfactory
to the Administrative Agent, (ii) such other Foreign Subsidiary Pledge Documents as may be necessary, in the reasonable judgment of the Administrative Agent, to effect a pledge to the Administrative Agent, for the benefit of the Secured Parties,
of 65% (or such lesser percentage as the Loan Parties may own) of each class of the outstanding Equity Interests of such Foreign Subsidiary, (iii) evidence that all corporate action required to be taken in connection therewith has been taken,
(iv) a Part 21A Certificate in the case that such Foreign Subsidiary is incorporated in the United Kingdom and (v) a favorable written opinion of counsel in each applicable jurisdiction as to the effectiveness of such pledge and such other
matters as the Administrative Agent may reasonably request.
(f)
If, as of most recent fiscal quarter or fiscal year for which financial statements are required to be delivered pursuant to
Section 6.01(a)
or
(b)
, all Immaterial Subsidiaries, together with their respective subsidiaries, account for
more than 10% of Consolidated Total Assets, 10% of Consolidated Net Worth or 10% of the consolidated revenues of the Company for the period of four consecutive fiscal quarters immediately preceding the date of determination, then the Company
shall so notify the Administrative Agent, and shall, within 10 days of the delivery of the applicable Compliance Certificate, redesignate Immaterial Subsidiaries as Material Subsidiaries so that all Immaterial Subsidiaries and their respective
Subsidiaries comply with the
proviso
to the definition of “Immaterial Subsidiary.”
At any time, the Company may elect to designate any Immaterial Subsidiary as a Material Subsidiary pursuant to a written notice delivered to the Administrative
Agent.
(g)
The Company may, with the consent of the Administrative Agent (which consent shall be granted if the Administrative Agent is reasonably satisfied that local Law provides the
means to realize upon the pledge without undue cost or burden), designate any Subsidiary of WES, all of the issued and outstanding Equity Interests of which are owned directly by a Foreign Subsidiary Guarantor, as a WES Stock Pledge Subsidiary by
not less than ten (10) Business Days’ (or such shorter period as the Administrative Agent may agree) notice to the Administrative Agent, which notice shall be accompanied by
, unless otherwise agreed by the Required Revolving Credit Lenders,
(i) such WES Stock Pledge Documents as may be necessary, in the reasonable judgment
of the Administrative Agent, to effect a pledge to the Administrative Agent, for the benefit of the
applicable
Secured Parties, securing the Foreign Obligations, of 100% of each class of the outstanding Equity Interests of such Foreign Subsidiary, (ii) evidence that all corporate action required to be taken in connection
therewith has been taken and (iii) a favorable written opinion of counsel in each applicable jurisdiction as to the effectiveness of such pledge and such other matters as the Administrative Agent may reasonably request.
The Company may at any time after the Sixth Amendment Effective Date (A) (i) rescind the designation of WEX Europe
Services S.r.l. as a WES Stock Pledge Subsidiary and (ii) rescind the designation of any other WES Stock Pledge Subsidiary (the “Redesignation”); provided that (x) after giving effect to the Redesignation, any outstanding Investment made by
the Company or its Subsidiaries on or after the date of this Agreement in such WES Stock Pledge Subsidiary prior to the Redesignation shall be deemed made for purposes of Section 7.02 immediately following the Redesignation and any incurrence
of Indebtedness by such Subsidiary prior to the date of the Redesignation that remains outstanding on the date of the Redesignation shall be deemed incurred for purposes of Section 7.03 immediately following the Redesignation, and (y) no
Default or Event of Default has occurred and is continuing or would result from the Redesignation; and (B) with the consent of the Required Revolving Credit Lenders, notify the Administrative Agent that one or more WES Stock Pledge Documents
shall be released (but without rescinding the designation of any WES Stock Pledge Subsidiary) and the Administrative Agent and Lenders will take whatever actions necessary to effect any such releases.
6.14
Compliance with Regulatory Requirements
. With
respect to each Material Bank Regulated Subsidiary, (i) comply with all minimum capital ratios and guidelines, including without limitation, risk-based capital guidelines and capital leverage regulations (as may from time to time be prescribed
by regulation or enforceable order of the FDIC or other federal or state regulatory authorities having jurisdiction over such Person), and within such ratios and guidelines be “well-capitalized” and (ii) at all times comply with applicable
financial institution regulations and requirements with respect to capital adequacy.
6.15
Further Assurances
. Promptly upon request by the
Administrative Agent (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably require from time to time in order to (i) carry out more effectively the purposes of
the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral
Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which
any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.
6.16
Post-Closing Covenant
. The Company shall satisfy
the requirements set forth on
Schedule 6.16
on or before the date specified for such requirement, or any later date as the Administrative Agent may
determine in its sole discretion.
6.17
People with Significant Control Regime (UK)
. Each
Loan Party shall (and the Company shall ensure that each other Subsidiary will):
(a)
within the relevant timeframe, comply with any notice it receives pursuant to Part 21A of the United Kingdom Companies Act 2006 from any company incorporated in the United
Kingdom whose shares are the subject of a Lien under the Collateral Documents; and
(b)
promptly provide the Administrative Agent with a copy of that notice.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall not, nor shall it permit any Subsidiary (other than any Bank Regulated Subsidiary, in the case of
Sections 7.02
,
7.03
,
7.06
,
7.08
and
7.12
) to, directly or indirectly:
7.01
Liens
. Create, incur, assume or suffer to exist
any Lien upon any of its other property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)
Liens pursuant to any Loan Document (including Liens pursuant to the Collateral Documents securing the 2023 Senior Notes);
(b)
Liens existing on the Closing Date and listed on
Schedule 7.01
and any renewals or
extensions thereof;
provided
that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as
contemplated by
Section 7.03(b)
, (iii) the requirements with respect to any direct or any contingent obligor with respect thereto is not changed, and (iv)
any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b)
;
(c)
Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;
(d)
carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more
than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;
(d)
pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;
(f)
deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g)
Permitted Encumbrances;
(h)
Liens securing judgments for the payment of money not constituting an Event of Default under
Section
8.01(h)
;
(i)
Liens securing Indebtedness permitted under
Section 7.03(g)
;
provided
that, (i) in the case of Indebtedness permitted under
Section
7.03(g)(i)
, (A) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (B) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower,
of the property being acquired on the date of acquisition, and (ii) in the case of Indebtedness permitted under
Section 7.03(g)(ii)
, such Liens do not
attach to all assets of the Company or any Subsidiary thereof or otherwise constitute “blanket” Liens, but instead attach only to specific items of property (and not to accounts);
(j)
Liens existing on any property or asset acquired in a Permitted Acquisition or existing on any property or asset of any Person that becomes a Subsidiary after the Closing Date
prior to the time such Person becomes a Subsidiary;
provided
that (i) such Lien is not created in contemplation of or in connection with such Permitted
Acquisition or such Person become a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Company or any Subsidiary; and (iii) such Lien shall secure only those obligations which it secures on the
date of such Permitted Acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof and any Indebtedness secured by
such Liens is permitted under
Section 7.03(h)
;
(k)
Liens on any property or assets of the Company or any Subsidiary in favor of a Bank Regulated Subsidiary securing obligations between such Bank Regulated Subsidiary and the
Company or any Subsidiary not exceeding in the aggregate (i) $40,000,000 in 2016 and (ii) in each fiscal year thereafter, the amount which is ten percent (10%) in excess of the aggregate principal amount permitted in the prior fiscal year;
(l)
Liens incurred by a Bank Regulated Subsidiary in the ordinary course of its business in connection with the issuance of certificates of deposit, escrow deposits in the form of
money market deposits, customer deposits and borrowed federal funds, federal funds borrowings from federally chartered banks, and federal discount window borrowings;
(m)
Liens attaching to any deposit accounts in which cash collateral in an aggregate amount not to exceed $45,000,000 (which amount shall be increased by 10% on each anniversary
of the date hereof) has been provided in connection with (1) hedging agreements entered into in the ordinary course of business and not for speculative purposes or (2) credit card reimbursement obligations;
(n)
(i) Liens existing or deemed to exist in connection with any Permitted Securitization Transaction, but only to the extent that any such Lien relates to the applicable
Securitization Assets sold, contributed, financed or otherwise conveyed or pledged pursuant to such transactions; and (ii) Liens existing or deemed to exist in connection with a Permitted Factoring Transaction, but only to the extent that any
such Lien relates to the applicable Factorable Receivables sold, contributed, financed or otherwise conveyed or pledged pursuant to such transaction;
(o)
Liens securing Indebtedness permitted under
Section 7.03(p)
,
(r)
or
(s)
, in each case subject to customary intercreditor
agreement(s) in form and substance reasonably acceptable to the Administrative Agent and the Company;
(p)
Liens securing only Indebtedness permitted under
Section 7.03(m)
;
provided
that such liens shall not apply to the assets or property of any Loan Party or of the Company or any Subsidiary other than the RD Entities; and
(q)
Liens on Designated Regulatory Cash arising as a matter of Law or required by Law.
7.02
Investments
. Make any Investments, except:
(a)
Investments held by the Company or such Subsidiary in the form of Cash Equivalents;
(b)
(i) advances to officers, directors and employees of the Company and its Subsidiaries in an aggregate amount not to exceed $3,000,000 at any time outstanding and (ii) advances
of payroll payments in the ordinary course of business;
(c)
Investments of (i) any Domestic Loan Party in any other Domestic Loan Party, (ii) any Foreign Loan Party in any other Loan Party (other than a Limited Guarantor Foreign
Subsidiary), (iii) any Limited Guarantor Foreign Subsidiary in any Subsidiary of WES that is a Limited Guarantor Foreign Subsidiary or a WES Stock Pledge Subsidiary, or (iv) any Subsidiary that is not a Loan Party in the Company or any of its
Subsidiaries;
provided
that (x) the aggregate amount of all Investments in WES Stock Pledge Subsidiaries made in reliance on the foregoing clause (c)(iii)
shall not exceed $175,000,000 at any time outstanding and (y) if the Administrative Agent has designated a Reduced Guaranty Investment Cap for any Reduced Guaranty Foreign Subsidiary, the aggregate amount of all Investments in such Reduced
Guaranty Foreign Subsidiary made in reliance on this subsection (c)(iii) shall not exceed such Reduced Guaranty Investment Cap over the term of this Agreement;
(d)
Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e)
Guarantees permitted by
Section 7.03
, including Guarantees under the Loan
Documents;
(f)
Investments of (i) any Domestic Loan Party in any Foreign Loan Party or (ii) any Loan Party (A) in a Subsidiary other than a Loan Party or (B) in a Limited Guarantor Foreign
Subsidiary;
provided
that the aggregate amount of all Investments permitted by this clause (f), together with (but without duplication of) Indebtedness
permitted by
Section 7.03(e)
, shall not exceed
$300,000,000 at any time outstanding
the greater of (x)
$500,000,000 and (y) 70% of Consolidated EBITDA for the Test Period most recently then ended at any time outstanding; it being understood that this clause (f) can be used multiple times for the same transaction or series of related
transactions without counting such Investments more than once for purposes of the foregoing proviso
;
(g)
Investments constituting short-term advances to a Bank Regulated Subsidiary in an aggregate outstanding amount not to exceed $75,000,000 at any time;
provided
that each such advance shall be repaid, and the outstanding amount of Investments made in reliance on this subsection (g) reduced to zero for one full Business Day,
within 30 days of such advance;
(h)
Investments constituting (i) Permitted Acquisitions or (ii) part of a Permitted Restructuring Transaction;
(i)
Investments consisting of fundamental changes and Restricted Payments permitted under
Sections
7.04
and
7.06
, respectively;
(j)
Investments outstanding on the Closing Date and listed on
Schedule 7.02
and any
renewal or extension thereof so long as the amount of such Investment is not increased thereby;
(k)
Investments by the Company and its Subsidiaries existing on the Closing Date in the capital stock of their respective Subsidiaries;
(l)
Investments in Swap Contracts permitted under
Section 7.03(f)
;
(m)
Investments in the ordinary course of business consisting of (i) endorsements for collection or deposit, (ii) customary trade arrangements with customers consistent with past
practices, (iii) guarantees of leases of the Company or any Subsidiary, (iv) guarantees of performance of non-monetary obligations of the Company and its Subsidiaries or (v) guarantees of other obligations not constituting Indebtedness of the
Company or any Subsidiary;
provided
that, in the case of this clause (v), such guarantees are permitted as an Investment under subsection (f) above;
(n)
Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers, suppliers or any other Person;
(o)
Investments received as part of a redemption or payment of or for, as a dividend on, or as a distribution in respect of, other Investments permitted by this
Section 7.02
;
(p)
additional Investments made from time to time to the extent made with proceeds of Qualified Stock of the Company;
(q)
Investments of a Subsidiary acquired after the Closing Date or of a Person merged into or consolidated with the Company or any Subsidiary in accordance with
Section 7.04
after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or consolidation;
(r)
Investments constituting loans and other extensions of credit made to customers of Bank Regulated Subsidiaries pursuant to one or more participation agreements with Bank
Regulated Subsidiaries in an aggregate amount not exceeding (i) $
200,000,000
500,000,000
in
2016
2019
and (ii) in each fiscal year
thereafter, the amount which is ten percent (10%) in excess of the aggregate principal amount permitted in the prior fiscal year;
provided
that the
aggregate amount of Investments outstanding in reliance upon this subsection (r) may not exceed for more than three consecutive Business Days (x) $
135,000,000
300,000,000
in
2016
2019
and (y) in each fiscal year thereafter, the amount which is ten percent (10%) in excess of the aggregate amount of Investments permitted under
subclause (x) of
this proviso in the prior fiscal year;
(s)
Investments constituting loans and other extensions of credit made to customers of the Company and its Subsidiaries’ co-branded relationship;
(t)
Investments in connection with pledges, deposits, payments or performance bonds made or given in the ordinary course of business in connection with or to secure statutory,
regulatory or similar obligations including obligations under insurance, health, disability, safety or environmental obligations;
(u)
Investments by the Company or its Subsidiaries in accounts receivable owing to them, if created or acquired in the ordinary course of business and payable in accordance with
customary trade terms (including the dating of accounts receivable and extensions of payments in the ordinary course of business);
(v)
Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for transactions permitted under
Section 7.05
;
(w)
Investments in a Permitted Securitization Entity required for capitalization from time to time of such Permitted Securitization Entity or in connection with a contribution,
sale or other transfer of Securitization Assets to such Permitted Securitization Entity pursuant to or in connection with a Permitted Securitization Transaction, and Investments constituting Standard Securitization Undertakings in connection with
a Permitted Securitization Transaction;
(x)
Investments constituting ordinary-course transfer pricing liabilities among the Company and its Subsidiaries;
(y)
Investments existing on the Closing Date consisting of long-term Indebtedness of RD Acquisition Sub 1 to the Company and interest accrued and that may accrue thereon, not
exceeding $250,000,000 in aggregate principal amount;
(z)
Investments constituting Guarantees by the Company of ordinary-course liabilities, not constituting Indebtedness, of Foreign Subsidiaries;
provided
that the maximum amount of liabilities so Guaranteed in reliance on this clause (z) may not exceed $150,000,000;
(aa)
Investments by WEX International Holdings (and other Subsidiaries of WEX, other than WES and its Subsidiaries) in WES;
provided
that the aggregate amount of Investments made in reliance on this subsection (aa) shall not exceed $350,000,000 over the term of this Agreement;
(bb)
other Investments not exceeding $
50,000,000
100,000,000
in the aggregate in any fiscal year of the Company; and
(cc)
Investments consisting of Guarantees of Permitted Factoring Transactions to the extent permitted under the definition of Permitted Factoring Transactions.
Indebtedness
.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a)
Indebtedness under the Loan Documents;
(b)
Indebtedness outstanding on the Closing Date and listed on
Schedule 7.03
and any
Permitted Refinancing Indebtedness in respect thereof;
(c)
Indebtedness of (i) any Domestic Loan Party to any other Loan Party, (ii) any Foreign Loan Party (other than a Limited Guarantor Foreign Subsidiary) to another Foreign Loan
Party, (iii) any Limited Guarantor Foreign Subsidiary or WES Stock Pledge Subsidiary to any Limited Guarantor Foreign Subsidiary or (iv) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
provided
that (x) the aggregate outstanding amount of Indebtedness incurred by WES Stock Pledge Subsidiaries in reliance on the foregoing clause (c)(iii) shall
not, when taken together with (but without duplication of) all other Investments in such WES Stock Pledge Subsidiaries in reliance on
Section 7.02(c)(iii)
,
at any time exceed $175,000,000 and (y) if the Administrative Agent has designated a Reduced Guaranty Investment Cap for any Reduced Guaranty Foreign Subsidiary, the aggregate outstanding amount of all Indebtedness of such Reduced Guaranty
Foreign Subsidiary incurred in reliance on this
Section 7.03(c)(iii)
shall not, when taken together with (but without duplication of) all other
Indebtedness incurred by such Reduced Guaranty Foreign Subsidiary in reliance on
Section 7.02(c)(iii)
, at any time exceed such Reduced Guaranty Investment
Cap
; or
;
(d)
Guarantees by (i) any Domestic Loan Party of Indebtedness of any other Domestic Loan Party, (ii) any Foreign Loan Party of Indebtedness of any other Loan Party (other than a
Limited Guarantor Foreign Subsidiary), (iii) any Limited Guarantor Foreign Subsidiary of any Indebtedness of any other Limited Guarantor Foreign Subsidiary, or (iv) Subsidiary that is not a Loan Party of Indebtedness of the Company or any of its
Subsidiaries;
provided
that any Guarantee by a Loan Party of Indebtedness that is subordinated to the Obligations shall be subordinated to the Obligations
to the same extent as such Guaranteed Indebtedness;
(e)
Indebtedness of (i) any Foreign Loan Party to any Domestic Loan Party, or of any Limited Guarantor Foreign Subsidiary or any other Subsidiary other than a Loan Party to any
Loan Party and (ii) Guarantees by any Domestic Loan Party of Indebtedness of any Person other than a Domestic Loan Party, or by any Foreign Loan Party of Indebtedness of any Limited Guarantor Foreign Subsidiary or any Subsidiary other than a Loan
Party;
provided
that the aggregate amount of Indebtedness and Guarantees permitted by this clause (e) together with (but without duplication of)
Investments pursuant to
Section 7.02(f)
, shall not exceed
$300,000,000
the greater of (x) $500,000,000 and (y)
70% of Consolidated EBITDA for the Test Period most recently then ended
at any time outstanding;
provided
,
further
, that any Guarantee by a Loan Party of Indebtedness that is subordinated to the Obligations shall be subordinated to the Obligations to the same extent as such Guaranteed
Indebtedness;
it being understood that this clause (e) can be used multiple times for the same
transaction or series of related transactions without counting such Indebtedness more than once for purposes of the first proviso in this clause (e);
(f)
obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under any Swap Contract;
provided
that (i) (x) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of mitigating risks associated with liabilities, commitments, investments,
assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view,” or (y) such obligations arise out of the Company’s or
any Subsidiary’s hedging of its fuel price-related earnings exposure in a manner consistent with the Company’s practices as of the Closing Date and, in each case, not for purposes of speculation and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party upon termination of such Swap Contract by the non-defaulting party;
(g)
Indebtedness in respect of (i) capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets and (ii) other secured Indebtedness, in
each case within the applicable limitations set forth in
Section 7.01(i)
, and Permitted Refinancing Indebtedness in respect of clauses (i) and (ii);
provided
,
however
, that the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $40,000,000;
(h)
Indebtedness of any Person that becomes a Subsidiary after the Closing Date and extensions, renewals, refinancings and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof and any Permitted Refinancing Indebtedness in respect thereof;
provided
that (i) such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted by this clause (h) shall not
exceed $30,000,000 at any time outstanding;
(i)
Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business;
provided
that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(j)
Indebtedness of the Company or any Subsidiary constituting indemnification, adjustment of purchase price, earn outs or similarly obligations, in each case, incurred or assumed
in connection with the acquisition or disposition of any business, assets or a Subsidiary permitted hereunder;
(k)
subordinated Indebtedness of the Company;
provided
that (i) no such Indebtedness
shall mature or amortize earlier than 180 days after the latest Maturity Date in respect of a Facility hereunder, (ii) no agreement or instrument executed with respect to such Indebtedness shall have any financial covenants, events of default or
terms which conflict with, or covenants which are more restrictive than the terms of the Loan Documents (and all such financial covenants, events of default, terms and covenants shall be reasonably satisfactory to the Administrative Agent), and
the Company shall have delivered to the Administrative Agent copies of all such agreements and instruments prior to the execution thereof, (iii) the terms of subordination of such Indebtedness shall be reasonably satisfactory to the
Administrative Agent and (iv) no Default shall have occurred or be continuing or would result from the incurrence of such Indebtedness, and a Responsible Officer of the Company shall have delivered a certificate to the Administrative Agent
demonstrating the same;
(l)
obligations of the Company or any Subsidiary (1) pursuant to or in connection with any Permitted Securitization Transaction, to the extent such obligations satisfy the
conditions set forth in
Section 7.16
and (2) in respect of a Permitted Factoring Transaction;
(m)
Indebtedness (i) of the RD Entities under one or more working capital facilities, in an aggregate outstanding principal amount not to exceed $40,000,000 at any time, or (ii)
constituting Guarantees by the Company of such Indebtedness;
(n)
Indebtedness constituting Investments permitted by
Section 7.02(y)
or
(z)
;
(o)
other Indebtedness constituting unsecured senior or senior subordinated notes of the Company (including the 2023 Senior Notes), so long as immediately before and immediately
after giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and the application of the proceeds thereof, no Default shall have occurred and be continuing;
provided
that (i) the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $400,000,000, (ii) such Indebtedness has a final maturity date equal to or later than 180 days after the final
maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Term Loans, (iii) the terms and conditions of such Indebtedness (excluding pricing and optional prepayment or
redemption terms) reflect market terms on the date of issuance, are reasonably acceptable to the Administrative Agent and do not contain covenants (including financial maintenance covenants), taken as a whole, that are materially more restrictive
than (or in addition to), with respect to the Company and its Subsidiaries and any guarantor, those contained in this Agreement with respect to the Company and its Subsidiaries on the date of issuance; (iv) such Indebtedness is not guaranteed by
any Subsidiary of the Company that is not a Domestic Subsidiary Guarantor; and (v) such Indebtedness is either Indebtedness under the 2023 Senior Notes or a refinancing of such Indebtedness (or a prior refinancing thereof);
(p)
Incremental Equivalent Debt and any Permitted Refinancing Indebtedness in respect thereof;
provided
that it shall be a condition precedent to the effectiveness of any Incremental Equivalent Debt that (x) after giving effect thereto, the Incremental Amount does not exceed the Incremental Cap, and (y) no Default or Event of Default shall have
occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Equivalent Debt;
(q)
Permitted Unsecured Refinancing Debt and any Permitted Refinancing Indebtedness in
respect thereof;
(r)
Permitted Pari Passu Refinancing Debt and any Permitted Refinancing Indebtedness in respect thereof;
(s)
Permitted Junior Priority Refinancing Debt, and any Permitted Refinancing Indebtedness in respect thereof;
(t)
other unsecured Indebtedness so long as the Company would be in compliance with
Section 7.11
on a Pro Forma Basis immediately after giving effect to such Indebtedness;
(u)
Indebtedness incurred in connection with (and constituting part of) a Permitted Restructuring Transaction;
and
(v)
Indebtedness incurred in the ordinary course of business in connection with cash pooling arrangements, cash management and other similar arrangements consisting of netting
arrangements and overdraft protections incurred in the ordinary course of business
.
; and
(w)
other Indebtedness in an aggregate principal amount outstanding at any time which shall not exceed $50,000,000.
Fundamental
Changes
. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to
or in favor of any Person
(including, in each case, pursuant to a LLC Division)
,
except, so long as no Default or Event of Default exists or would result therefrom:
(a)
any Subsidiary may merge with (i) the Company;
provided
that the Company shall be
the continuing or surviving Person, or (ii) any one or more other Subsidiaries;
provided
that (A) when any Designated Borrower is merging with another
Subsidiary, such Designated Borrower shall be the continuing or surviving Person, (B) when any Domestic Subsidiary Guarantor is merging with another Subsidiary (other than a Designated Borrower), a Domestic Subsidiary Guarantor shall be the
continuing or surviving Person, (C) when any Foreign Subsidiary Guarantor is merging with another Subsidiary (other than a Designated Borrower or Domestic Subsidiary Guarantor), a Foreign Subsidiary Guarantor shall be the continuing or surviving
Person, and (D) when any wholly-owned Subsidiary is merging with another Subsidiary, a wholly-owned Subsidiary shall be the continuing or surviving Person;
(b)
any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or to another Subsidiary;
provided
that (i) if the transferor in such a transaction is a Designated Borrower that is a Domestic Subsidiary or a Domestic Subsidiary Guarantor, then the
transferee must be the Company, a Designated Borrower that is a Domestic Subsidiary or a Domestic Subsidiary Guarantor and (ii) if the transferor in such a transaction is a Designated Borrower that is a Foreign Subsidiary or a Foreign Subsidiary
Guarantor, then the transferee must be the Company, a Designated Borrower or a Subsidiary Guarantor;
(c)
the Company or any Subsidiary may merge with any other Person in order to effect a Permitted Acquisition;
provided
that (i) the continuing or surviving Person shall have complied with the requirements of
Section 6.13
, if applicable, and
(ii) in the case of a merger of a Borrower with any other Person, such Borrower shall be the continuing or surviving Person; and
(d)
in connection with a Permitted Restructuring Transaction.
7.05
Dispositions
. Make any Disposition or enter into
any agreement to make any Disposition, except:
(a)
Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b)
Dispositions of inventory in the ordinary course of business;
(c)
Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property or (iii) such property is no longer needed for the operation of the Borrower;
(d)
Dispositions of property by
the Company or
any Subsidiary to the Company or to a wholly-owned Subsidiary;
provided
that except to the extent that such
Disposition is permitted as an Investment under
Section 7.02
(i) if the transferor in such a transaction is
the Company,
a Designated Borrower that is a Domestic Subsidiary or is a Domestic Subsidiary Guarantor, then the transferee
must be the Company, a Designated Borrower that is a Domestic Subsidiary or a Domestic Subsidiary Guarantor and (ii) if the transferor in such a transaction is a Designated Borrower that is a Foreign Subsidiary or is a Foreign Subsidiary
Guarantor, then the transferee must be the Company, a Designated Borrower or a Subsidiary Guarantor;
(e)
Dispositions permitted by
Section
Sections 7.02,
7.04
or 7.06
;
(f)
Dispositions by the Company and its Subsidiaries of property permitted by
Section 7.12
;
(g)
Dispositions of Securitization Assets for fair market value (or for fair consideration and reasonably equivalent value) to one or more Permitted Securitization Entities and
their assigns pursuant to or in connection with a Permitted Securitization Transaction or by any Permitted Securitization Entity in connection therewith;
(h)
other Dispositions from and after the Closing Date by the Company and its Subsidiaries for an aggregate sale price not to exceed 5% of Consolidated Total Assets calculated at
the time of each Disposition;
provided
that with respect to any Disposition pursuant to this clause (h), the Company or any Subsidiary shall receive not
less than 75% of such consideration in the form of cash or Cash Equivalents;
(i)
transfers of customer relationships and related accounts receivables from any Acquired Entity or Business directly or indirectly to any Bank Regulated Subsidiary;
(j)
Dispositions as part of a Permitted Restructuring Transaction; and
(k)
Dispositions of Factorable Receivables in Permitted Factoring Transactions;
provided
,
however
, that any Disposition pursuant to clauses (a), (b), (c), (f), (h) and (k) shall be for fair market value.
7.06
Restricted Payments
. Declare or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or (in the case of Subsidiaries of the Company only) issue or sell any Equity Interests, except that, so long as no Default or Event of Default shall
have occurred and be continuing at the time of any action described below or would result therefrom:
(a)
each Subsidiary may make Restricted Payments to (i) the Company and its Subsidiaries and (ii) any other Person that owns an Equity Interest in such Subsidiary, in each case of
clauses (i) and (ii), ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b)
the Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such
Person;
(c)
the Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of
new shares of its Qualified Stock;
(d)
the Company may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Company and its
Subsidiaries;
(e)
the Company may from time to time make other Restricted Payments;
provided
that (A)
after giving effect to each such Restricted Payment and any related transactions (including any related incurrence of Indebtedness), the Consolidated Leverage Ratio for the most recently completed Test Period shall be less than 2.50:1.00,
calculated on a Pro Forma Basis and (B) prior to making any such Restricted Payment, if requested by the Administrative Agent, the Administrative Agent shall have received a certificate, dated the date of such Restricted Payment and signed by a
Responsible Officer of the Company, confirming compliance with the restrictions set forth in this
Section 7.06(e)
and containing calculations in
reasonable detail demonstrating such compliance;
(f)
so long as the Company would be in compliance with
Section 7.11
on a Pro Forma
Basis after giving effect to such Restricted Payments and any related transactions (including any related incurrence of Indebtedness), the Company may make Restricted Payments not otherwise permitted hereunder in an aggregate amount of
$50,000,000 during each fiscal year of the Company, of which 100% of unused amounts may be carried over into subsequent years;
(g)
sales or issuances of Equity Interests (i) to the Company or to a wholly-owned Subsidiary of the Company; (ii) constituting directors’ qualifying shares or sales to foreign
nationals required for compliance with applicable Laws; (iii) in a transaction otherwise permitted hereunder and resulting in such Subsidiary no longer constituting a Subsidiary, so long as the remaining Investment would have been permitted under
Section 7.02
; (iv) constituting the issuance of common Equity Interests (including warrants, options or rights to purchase shares of common Equity
Interests, but excluding Disqualified Stock), or issuances of Disqualified Stock permitted under
Section 7.03
; or (v) in a Subsidiary that is, or is
intended to be, a joint venture or partially-owned Subsidiary to a joint venture partner or other investor to the extent that the joint venture partner or other investor contributes or transfers cash, Cash Equivalents, or other assets the value
of which is at least equivalent to the fair market value of the Equity Interests so sold or issued; or
(h)
the Company and its Subsidiaries may make Restricted Payments as part of a Permitted Restructuring Transaction.
7.07
Change in Nature of Business; Bank
Regulated Subsidiaries
.
(a)
Engage in any business, if, as a result, the general nature of the business of the Loan Parties taken as a whole, would be substantially changed from the general nature of the
business of the Loan Parties taken as a whole, on the Closing Date.
(b)
Permit any Equity Interest in any Material Bank Regulated Subsidiary to be held, directly or indirectly, by any Person other than the Company, other than as a result of a
directive from any regulatory Governmental Authority, the compliance by the Company and such Material Bank Regulated Subsidiary with which does not result in (i) such Material Bank Regulated Subsidiary ceasing to be a Subsidiary of the Company or
(ii) a Bank Regulated Subsidiary Event.
7.08
Transactions with Affiliates
. Enter into any
transaction of any kind with any Affiliate of a Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Company or such Subsidiary as would be obtainable by the
Company or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate;
provided
that the foregoing
restriction shall not apply to (a) Restricted Payments made in accordance with
Section 7.06
, (b) transactions between or among the Company and any of its
wholly-owned Subsidiaries (or any Permitted Securitization Entity) or between and among any wholly-owned Subsidiaries (or any Permitted Securitization Entity) not involving any other Affiliate, (c) transactions entirely among WES and its
Subsidiaries
or
,
(d) Permitted Restructuring Transactions
, or (e) any transaction entered into by a Person prior to the time such Person was acquired by the Company or a Subsidiary pursuant to a Permitted Acquisition or other Investment permitted hereunder (and not entered into in
contemplation of such Permitted Acquisition or Investment)
.
7.09
Burdensome Agreements
. Enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Company or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets to secure
the Obligations, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its capital stock or to make or repay loans or advances to the Company or any other Subsidiary or to guarantee
Indebtedness of the Company or any other Subsidiary;
provided
that (i) the foregoing shall not apply to restrictions and conditions imposed by Law or by
this Agreement or the Loan Documents, (ii) the foregoing shall not apply to restrictions and conditions existing on the Closing Date and identified on
Schedule 7.09
(but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition) (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary or other asset sale agreements pending such sale, provided such restrictions and conditions apply only to the Subsidiary or assets to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (v)
the foregoing shall not apply to (x) any agreement relating to Indebtedness incurred in reliance on
Section 7.03(h)
(to the extent that such restrictions
apply only to the Person becoming a Subsidiary of the Company and any of its Subsidiaries that also become Subsidiaries of the Company in the same transaction or series of related transactions), or (y) any agreement relating to Indebtedness
incurred in reliance on
Section 7.03(k)
,
(o)
,
(p)
,
(q)
,
(r)
,
(s)
or
(t)
(in
each case, so long as such agreement permits the Obligations to become secured without further consent or act by the lenders or holders of Indebtedness thereunder;
provided
that, in the case of
Section 7.03(o)
,
(p)
,
(q)
,
(r)
,
(s)
or
(t)
such agreement may require that such Indebtedness be equally and ratably secured by any collateral on
which a Lien is granted to secure the Obligations), (vi) clause (a) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (vii) the foregoing shall not apply to restrictions on
cash (or Cash Equivalents) or other deposits imposed by agreements entered into in the ordinary course of business (including, for the avoidance of doubt, incurred in reliance on
Section 7.01(m)
) or restrictions on Designated Regulatory Cash, (viii) the foregoing shall not apply to customary restrictions and conditions imposed by any agreement relating to any agreement relating to
Indebtedness incurred in reliance on
Section 7.03(m)
,
provided
that such latter restrictions and conditions affect only the RD Entities;
and (ix) the foregoing
shall not apply to restrictions in any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Subsidiary, or that is assumed in connection with a Permitted Acquisition or other
Investment permitted hereunder, in each case that is in existence at the time of such transaction (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or designated, any replacements of such property or assets and additions and accessions thereto, after-acquired
property subject to such agreement or instrument, the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by
such lender;
provided
,
further
, that this
Section 7.09
shall not apply (i) to a Bank Regulated Subsidiary to the extent that any such restriction, prohibition or condition is imposed by a Governmental
Authority in connection with the ordinary course of business of such Bank Regulated Subsidiary, (ii) to the Company or any Subsidiary in connection with any agreements evidencing a Permitted Factoring Transaction, (iii) to the Company or any
Subsidiary in connection with a Permitted Securitization Transaction;
provided
that, in the case of this clause (iii), the same extend only to the related
Securitization Assets and the Equity Interests of the relevant Permitted Securitization Entity, or (iv) to any Permitted Securitization Entity in connection with any agreements evidencing a Permitted Securitization Transaction.
7.10
Use of Proceeds
. Use the proceeds of any Credit
Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, (x) to purchase or carry margin stock (within the meaning of Regulation U of the FRB) in violation of Law (including Regulation U) or to extend credit
to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose or (y) for any purpose which would breach Anti-Corruption Laws or Sanctions.
7.11
Financial Covenants
. Except with the consent of
the Required Financial Covenant Lenders:
(a)
Consolidated Interest Coverage Ratio
. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Company to be less than 3:00 to 1:00.
(b)
Consolidated Leverage Ratio
. Permit the Consolidated Leverage Ratio as of the end
of any fiscal quarter of the Company to exceed the ratio set forth below opposite the period in which such day falls:
|
Fiscal Quarter Ended During the Periods Below
|
Maximum Consolidated
Leverage Ratio
|
|
September 30, 2018 through September 30, 2019
|
5.00:1:00
|
|
December 31, 2019 through September 30, 2020
|
4.50:1:00
|
|
December 31, 2020 through September 30, 2021
|
4.25:1:00
|
|
December 31, 2021 and thereafter
|
4.00:1:00
|
Notwithstanding the foregoing, following the delivery of a Specified Acquisition Certificate, the maximum Consolidated Leverage Ratio set
forth above for each measurement date shall be permanently increased by 0.50:1.00.
7.12
Sale and Leasebacks
. Enter into any arrangement
with any Person providing for the leasing by the Company or any Subsidiary of real or personal property that has been or is to be sold or transferred by the Company or such Subsidiary to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental obligations of the Company or such Subsidiary unless such arrangement is entered into in connection with the financing of the acquisition of such property through the
proceeds of a capital lease permitted by
Section 7.03(g)(i)
and the sale or transfer of such property occurs within thirty days following the acquisition
thereof by the Company or any of its Subsidiaries.
7.13
Accounting Changes
. (i) Make any material change
in accounting principles or reporting practices, except as are made in accordance with GAAP or as are otherwise consented to by the Administrative Agent or (ii) change its fiscal year or quarters or the method of determination thereof;
provided
that this
Section 7.13
shall not apply to a Bank Regulated
Subsidiary to the extent that any such change is required or imposed by a Governmental Authority.
7.14
Tax Receivable Agreement; Prepayments
.
(a)
Make any payment under the Tax Receivable Agreement if an Event of Default has occurred and is continuing, or make any prepayment under the Tax Receivable Agreement other than
Permitted Tax Receivable Agreement Prepayments.
(b)
Make any prepayment in respect of, or redeem or purchase, any Indebtedness incurred in reliance upon
Section 7.03(k)
or
(o)
.
7.15
Amendments
. Amend (i) the documents or
instruments governing any Indebtedness incurred under
Section 7.03(k)
or
(o)
without the consent of the Administrative Agent or (ii) any Organizational Document in a manner materially adverse to the Administrative Agent or the Lenders.
7.16
Permitted Securitization Transactions
.
(a)
Permit the aggregate Attributable Indebtedness in respect of all Permitted Securitization Transactions of the Company, its Subsidiaries and all Permitted Securitization
Entities to third parties to exceed $450,000,000 at any time.
(b)
Except in the case of a Permitted Securitization Entity, incur or become obligated with respect to any Indebtedness or other liabilities or obligations in connection with any
Permitted Securitization Transaction other than Indebtedness or other liabilities or obligations (i) resulting from the transfer of any Securitization Assets in connection with a Permitted Securitization Transaction so long as such Indebtedness
is non-recourse to the Company and any Subsidiary (other than the applicable Permitted Securitization Entity), except for Standard Securitization Undertakings and (ii) consisting of Standard Securitization Undertakings.
7.17
Changes in Locations, Name, etc.
In the case of
any Loan Party any assets of which (including any Equity Interests of any Subsidiary) are pledged to secure any of the Obligations, except upon 10 days prior written notice to the Administrative Agent (or within any other such period as agreed by
the Administrative Agent) and execution and delivery to the Administrative Agent of all additional financing statements and other documents reasonably requested by the Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for herein:
(a)
change its jurisdiction of organization;
(b)
change its name; or
(c)
if it is not a “registered organization” (as defined in the Uniform Commercial Code), change its location (as determined under the Uniform Commercial Code).
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01
Events of Default
. Any of the following shall
constitute an “
Event of Default
”:
(a)
Non-Payment
. Any Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or
any fee due hereunder, or any other amount payable hereunder or under any other Loan Document; or
(b)
Specific Covenants
. The Company fails to perform or observe any term, covenant or
agreement contained in any of
Section 6.01
,
6.02
,
6.03
,
6.05
,
6.10
,
6.11
,
6.13
,
6.16
or
Article VII
;
provided
that a Default as a result of a breach of
Section 7.11
(the “
Financial Covenants
”) shall not in and of itself constitute an Event of Default with respect to any Term Facility (other than the Term A-3 Facility) unless the Required Financial
Covenant Lenders have accelerated any Term A-3 Loans and Revolving Credit Loans then outstanding or terminated the Revolving Credit Commitments as a result of such breach and such declaration has not been rescinded on or before the date on which
the Term Lenders (other than the Lenders under the Term A-3 Facility) declare an Event of Default in connection therewith; or any Loan Party fails to perform or observe any term, covenant or agreement contained in any Guaranty to which it is a
party; or
(c)
Other Defaults
. Any Loan Party or the Specified Designated Borrower fails to
perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the Company or any of its
Subsidiaries obtains knowledge thereof; or
(d)
Representations and Warranties
. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Company or any other Loan Party or the Specified Designated Borrower herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made; or
(e)
Cross-Default
. (i) The Company, any other Loan Party or any Material Subsidiary (A)
fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or fails to make any
payment when due of the Swap Termination Value in an amount greater than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee
(or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded (in each case,
after giving effect to any applicable grace period) (
provided
that any breach of any Financial Covenant giving rise to an event described in clause (B)
above shall not, by itself, constitute an Event of Default under any Term Facility (other than the Term A-3 Facility) unless the Required Financial Covenant Lenders have accelerated any Term A-3 Loans and Revolving Credit Loans then outstanding
or terminated the Revolving Credit Commitments as a result of such breach and such declaration has not been rescinded on or before the date on which the Term Lenders (other than the Lenders under the Term A-3 Facility) declare an Event of Default
in connection therewith);
provided
that this clause (e)(i) shall not apply (x) to secured Indebtedness that becomes due as a result of the voluntary
Disposition or transfer of the property or assets securing such Indebtedness, so long as such Disposition is permitted hereunder and such Indebtedness is retired concurrently therewith or (y) to mandatory prepayments or redemptions of
Indebtedness incurred in reliance on
Section 7.03(k)
,
(o)
,
(p)
,
(q)
,
(r)
,
(s)
or
(t)
in
accordance with the terms of such Indebtedness, so long as such Disposition and such prepayment is permitted hereunder; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from any
event of default under such Swap Contract as to which the Company, any other Loan Party or any Material Subsidiary is the Defaulting Party (as defined in such Swap Contract) and the Swap Termination Value owed by the Company, such other Loan
Party or Material Subsidiary as a result thereof is greater than the Threshold Amount; or
(f)
Insolvency Proceedings, Etc
. (i) Any Loan Party or any of its Material Subsidiaries
(A) files, issues, institutes or consents to the filing, issuing or institution of any petition, procedure or proceeding under or to take advantage of any Debtor Relief Law, or (B) makes an assignment for the benefit of creditors or initiates or
enters into a composition, compromise or arrangement with any of its creditors, or (C) applies for or consents to the appointment of any receiver, administrator, examiner, compulsory manager, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its property, or (D) is adjudicated as insolvent; or (ii) any receiver, administrator, examiner, compulsory manager, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed in respect of any Loan Party or any of its Material Subsidiaries without the application or consent of such Person and, in the case of such an appointment under the laws of the United States or any
other jurisdiction in which such appointment may be contested and such Person is contesting such appointment in good faith by appropriate proceedings diligently conducted, such appointment is not discharged or stayed within 60 calendar days; or
(iii) any procedure or proceeding under or to take advantage of any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted or any petition under or to take advantage of any Debtor Relief Law is
filed or issued without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding or with respect to any such petition; or
(g)
Inability to Pay Debts; Attachment
. (i) The Company or any Material Subsidiary
admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or
(h)
Judgments
. There is entered against the Company or any Subsidiary one or more final
judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute
coverage) and enforcement of such judgment is not stayed, by reason of a pending appeal or otherwise, vacated, discharged or satisfied within 30 days after entry thereof, or there is a period of 10 consecutive days thereafter during which a stay
of enforcement of such judgment is not in effect; or
(i)
ERISA
. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount (
provided
that, with respect to any Multiemployer Plan, this clause (i) shall only apply if the Company has received written notice from such plan or otherwise
becomes aware that an event or circumstance described in such clause has occurred) or (ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, and the extension of the time to pay in
connection with the resolution of any dispute in accordance with the terms of Title IV of ERISA any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the Threshold Amount; or
(j)
Invalidity of Loan Documents
. Any provision of any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any
manner the validity or enforceability of any provision of any Loan Document; or any Loan Party or the Specified Designated Borrower denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to
revoke, terminate or rescind any provision of any Loan Document; or
(k)
Change of Control
. There occurs any Change of Control; or
(l)
Bank Regulated Subsidiary Event
. A Bank Regulated Subsidiary Event shall occur, or
WEX Bank or any other Material Bank Regulated Subsidiary shall fail at any time to be “adequately capitalized” in accordance with applicable federal or state laws; or
(m)
Collateral Documents
. Any Collateral Document after delivery thereof pursuant to
Section 4.01
,
6.13
or
6.16
shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien on the Collateral purported to be covered thereby; except to the extent that any
such loss of perfection or priority results from the failure of the Administrative Agent to (i) maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents, (ii) file initial
Uniform Commercial Code financing statements or continuation statements or other equivalent filings or (iii) take any other action reasonably directed by the Company to create and maintain the validity, perfection or priority of the Lien
thereof (and the Company shall pay all costs and expenses incurred in connection with any such action); or
(n)
Subordination
. (i) The subordination provisions of the documents evidencing or governing any subordinated Indebtedness (the “
Subordination Provisions
”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding
and enforceable against any holder of the applicable subordinated Indebtedness; or (ii) the Company or any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any
of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Administrative Agent, the Lenders and the L/C Issuer or (C) that all payments of principal of or premium and interest on the applicable
subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions.
8.02
Remedies Upon Event of Default
.
(i)
If an Event of Default occurs and is continuing as a result of a failure to observe or perform a Financial Covenant set forth in
Section 7.11
, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Financial Covenant Lenders, take the following actions:
(a)
in the case of a termination of the Revolving Credit Commitments, declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b)
declare the unpaid principal amount of all outstanding Term A-3 Loans or Revolving Credit Loans, as applicable, all interest accrued and unpaid thereon, and all other amounts
with respect thereto, owing or payable hereunder, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;
(c)
in the case of a termination of the Revolving Credit Commitments, require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding
Amount thereof); and
(d)
in the case of a termination of the Revolving Credit Commitments, exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the
Lenders and the L/C Issuer under the Loan Documents;
(ii)
If any other Event of Default occurs and is continuing or if an Event of Default occurs and is continuing as a result of a failure to observe or perform a Financial Covenant
set forth in
Section 7.11
and any of actions set forth in (i) above have been taken, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders (or in the case of a termination of the Revolving Credit Commitments, the Required Revolving Credit Lenders), take any or all of the following actions:
(a)
declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;
(b)
declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;
(c)
in the case of a termination of the Revolving Credit Commitments, require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding
Amount thereof); and
(d)
exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;
provided
,
however
, that, notwithstanding (i) and (ii) above, upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under
the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of
the Administrative Agent or any Lender.
8.03
Application of Funds
. After the exercise of
remedies provided for in
Section 8.02
(or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically
been required to be Cash Collateralized as set forth in the proviso to
Section 8.02
), any amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:
First
,
to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under
Article III
) payable to the Administrative Agent in its capacity as such;
Second
,
to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer) arising under the Loan Documents and amounts payable under
Article III
), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third
,
to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Third payable to them;
Fourth
,
to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and Obligations then owing under Specified Hedge Agreements and Specified Cash Management Agreement, ratably among the Lenders, the L/C
Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;
Fifth
,
to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and
Last
,
the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Company or as otherwise required by Law.
Subject to
Section
2.03(c)
, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, Obligations arising under the Specified Cash Management Agreement and
Specified Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the
applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given notice contemplated by the preceding sentence shall, by such notice, be deemed to have
acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of
Article IX
hereof for itself and its Affiliates as if a
“Lender” party hereto.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01
Appointment and Authority
.
(a)
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and the CAM Agreement and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this
Article IX
are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and no Borrower shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with
reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended
to create or reflect only an administrative relationship between contracting parties.
(b)
The Administrative Agent shall also act as the “
collateral agent
” under the Loan
Documents and the CAM Agreement, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as
the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 9.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder
at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this
Article IX
and
Article X
(including
Section 10.04(c)
, as though such co-agents, sub-agents and
attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
9.02
Rights as a Lender
. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own
securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.
9.03
Exculpatory Provisions
. The Administrative Agent
shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative
Agent:
(a)
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)
shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the
other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan
Documents);
provided
that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law;
(c)
shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity;
(d)
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in
Sections
10.01
and
8.02
) or (ii) in the absence of its own gross negligence or willful misconduct, as determined by a court of competent
jurisdiction by a final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Company, a Lender or
the L/C Issuer; and
(e)
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with
this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (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 Collateral 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 items expressly required to be delivered to the Administrative Agent.
9.04
Reliance by Administrative Agent
. The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or
increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be
counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05
Delegation of Duties
. The Administrative Agent
may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this
Article
IX
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and
nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06
Resignation of Administrative Agent
. The
Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
meeting the qualifications set forth above;
provided
that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person
has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other
Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each
Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this
Section 9.06
.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section 9.06
). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this
Article IX
and
Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them (i) while the retiring Administrative Agent was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity
hereunder or under the other Loan Documents, including (a) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Lenders and (b) in respect of any actions taken in connection with transferring the agency
to any successor Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section 9.06
shall also constitute its resignation as L/C Issuer and Swing Line Lender;
provided
that Bank of America shall give at least 30 days’ notice thereof to the Company. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume
the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
9.07
Non-Reliance on Administrative Agent and Other Lenders
.
Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.
9.08
No Other Duties, Etc.
Anything herein to the
contrary notwithstanding, none of the Joint Lead Arrangers or the Documentation Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
9.10
Administrative Agent May File Proofs of Claim
. In
case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i)
and
(j)
,
2.09
and
10.04
) allowed in such judicial proceeding; and
(b)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C
Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under
Sections 2.09
and
10.04
.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent
to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to
vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the
Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner
purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or
1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent
or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled
to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in
an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or
vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) the Administrative Agent shall be authorized to
adopt documents providing for the governance of the acquisition vehicle or vehicles (
provided
that any actions by the Administrative Agent with respect to
such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and
without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (k) of
Section 10.01
of this Agreement,
(iii) the Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any
Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and
(iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition
vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle
on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
9.10
Collateral and Guaranty Matters
. The Lenders and
the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,
(a)
to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Revolving Credit Facility and payment in
full of all Obligations (other than (A) contingent indemnification obligations and (B) obligations and liabilities under Specified Cash Management Agreements and Specified Hedge Agreements) and the expiration or termination of all Letters of
Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have been made), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder
or under any other Loan Document to a Person that is not a Loan Party, or (iii) subject to
Section 10.01
, if approved, authorized or ratified in writing
by the Required Lenders
or the Required Revolving Credit Lenders, as applicable
;
(b)
with respect to any Subsidiary who is Subsidiary Guarantor or whose Equity Interests have been pledged pursuant to the Foreign Subsidiary Pledge Documents, the Administrative
Agent may release such guaranty or pledge if such Subsidiary ceases to be a Subsidiary or becomes an Excluded Pledge Subsidiary (or becomes a Domestic Subsidiary that is treated as a disregarded entity for U.S. federal income tax purposes and
that owns directly or indirectly through one or more flow-through entities no material assets other than the Equity Interests of one or more Foreign Subsidiaries that are controlled foreign corporations, in which case, 35% of the Equity interests
in such Subsidiary shall be released from the pledge), an Excluded Domestic Guaranty Subsidiary or an Excluded Foreign Guaranty Subsidiary, as applicable, in each case in a transaction permitted hereunder;
(c)
to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by
Section 7.01(i)
;
and
(d)
to release any Subsidiary Guarantor from its obligations under any Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder
.
; and
(e)
subject to Section
10.01(i), to the extent not otherwise contemplated by this Section 9.10, terminate any Foreign Subsidiary Pledge Document (other than the U.S. Security Agreement) and release the Liens created thereunder in connection with (A) any
Redesignation pursuant to clause (A) of the last sentence of Section 6.13(g) and (B) any notice of release with the consent of the Required Revolving Credit Lenders pursuant to clause (B) of the last sentence Section 6.13(g).
Upon request by the Administrative Agent at any time, the Required Lenders
(or Required Revolving Credit Lenders, as applicable)
will confirm in writing the Administrative Agent’s
authority to release any Subsidiary Guarantor from its obligations under the Guaranties
(or WES
Stock Pledge Documents, as applicable)
pursuant to this
Section 9.10
.
9.11
Specified Cash Management Agreements and Specified Hedge
Agreements
. No Cash Management Bank or Hedge Bank that obtains the benefits of
Section 8.03
, the Guaranties or the Collateral Documents by
virtue of the provisions hereof or thereof have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the collateral (including the release or
impairment of any collateral) granted in the Collateral Documents other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this
Article IX
to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made
with respect to, Obligations arising under Specified Cash Management Agreements and Specified Hedge Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the
Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
ARTICLE X
MISCELLANEOUS
10.01
Amendments, Etc.
No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;
provided
,
however
, that unless expressly provided otherwise below, the Required Lenders’ consent shall
not be required in the following cases, and instead no such amendment, waiver or consent shall:
(a)
waive any condition set forth in
Section 4.01(a)
without the written consent of
each Lender;
(b)
without limiting the generality of clause (a) above, waive any condition set forth in
Section
4.02
as to any Credit Extension under a particular Facility without the written consent of the Required Revolving Credit Lenders, the Required Term A-3 Lenders or the Required Term B-
2
3
Lenders, as applicable;
(c)
extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Section 8.02
) without the written consent of such Lender;
(d)
postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(e)
reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this
Section 10.01
) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected
thereby;
provided
,
however
, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate;
(f)
change (i)
Section 2.13
or
Section 8.03
in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender or (ii) the order of (x) application of any reduction in the Commitments
or (y) any prepayment of Loans among the Facilities from the application thereof set forth in the applicable provisions of
Section 2.05
or
2.06
, respectively, in any manner that materially and adversely affects the Lenders under a Facility without the written consent of the Required Revolving
Credit Lenders, in the case of the Revolving Credit Facility, the Required Term A-3 Lenders, in the case of the Term A-3 Facility, or the Required Term B-
2
3
Lenders, in the case of the Term
B-
2
3
Facility;
(g)
amend
Section 1.06
or the definition of “Alternative Currency” without the written
consent of each Revolving Credit Lender;
(h)
(i) change the definition of “Required Revolving Credit Lenders,” “Required Term A-3 Lenders,” “Required Term B-
2
3
Lenders” or “Required Financial Covenant Lenders” or any other provision hereof specifying the number or percentage of Lenders of any Facility required to amend, waive or otherwise modify any rights hereunder or make any determination or grant
any consent hereunder, in each case with respect to such Facility, or (ii) change any provision of this
Section 10.01
or the definition of “Required
Lenders” or “Required Financial Covenant Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender under the applicable Facility, in the case of the foregoing clause (i), or each Lender, in the case of the foregoing clause (ii);
(i)
release all or substantially all of the collateral granted to the Secured Parties as security for the Obligations pursuant the Collateral Documents in any transaction or
series of related transactions, other than transactions permitted under this Agreement, without the written consent of each Lender;
(j)
release the Company from the Company
Guaranty or all or substantially all
of the value of the Guaranties without the written consent of each Lender, except to the extent the release of any Subsidiary Guarantor is permitted pursuant to
Section
9.10
or is otherwise permitted under this Agreement (in which case such release may be made by the Administrative Agent acting alone);
(k)
impose any greater restriction on the ability of any Lender under a Facility to assign any of its rights or obligations hereunder without the written consent of such Lender;
(l)
waive or amend
Section 7.11
or any defined term (or component defined term) as used
therein (or any Default or Event of Default or exercise of remedies by the Required Financial Covenant Lenders in respect or as a result thereof) without the written consent of the Required Financial Covenant Lenders;
provided
,
further
, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the
rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent
of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of such Defaulting Lender may not be increased or extended without the consent of
such Lender, and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) from time to
time with the consent of the Required Revolving Credit Lenders, the Administrative Agent and the Company to add one or more foreign currency subfacilities within the Revolving Credit Facility to permit the making of Revolving Credit Loans and the
issuance of Letters of Credit in a currency, other than Dollars or an Alternative Currency, that has not been approved by all Revolving Credit Lenders under
Section
1.06
after a request for such approval by the Company. All Credit Extensions under any such subfacility shall reduce the amount available to be borrowed under the Revolving Credit Facility and shall be made pro rata among the
Revolving Credit Lenders participating in each applicable subfacility. The principal, interest and other amounts in respect of any such subfacility shall be payable pro rata to the Revolving Credit Lenders participating in each applicable
subfacility, but the existence of any such subfacility shall not affect the fees otherwise payable to the Revolving Credit Lenders under the Revolving Credit Facility. No Lender shall have any obligation to participate in any subfacility of the
kind described in this paragraph.
In addition, notwithstanding anything to the contrary in this
Section 10.01,
any Additional Credit Extension Amendment shall be effective in accordance with the terms specifically provided in
Sections 2.17
,
2.18
and
2.19.
For the purposes of any amendment under this
Section 10.01
, and any other consent, approval or determination under this Agreement, any consent, approval or determination of a Lender shall constitute the consent, approval and determination by each
related Designated Lender.
10.02
Notices; Effectiveness; Electronic Communication
.
(a)
Notices Generally
. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)
if to a Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified
for such Person on
Schedule 10.02
; and
(ii)
if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire
(including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Company).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall
be deemed to have been given at the opening of business on the next business day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective
as provided in such subsection (b).
(b)
Electronic Communications
. Notices and other communications to the Lenders and the
L/C Issuer hereunder may be delivered or furnished by electronic communication (including e‑mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent;
provided
that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article II
if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, the Swing Line Lender, the L/C Issuer or
the Company may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it;
provided
that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii)
notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor;
provided
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c)
The Platform
. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “
Agent Parties
”) have any
liability to any Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Agent Party;
provided
,
however
, that in no event shall any Agent Party have any liability to any Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct
or actual damages).
(d)
Change of Address, Etc
. Each of the Borrowers, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the Company, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure
that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such
Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials
that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Company or its securities for purposes of United States Federal or state securities
laws.
(e)
Reliance by Administrative Agent, L/C Issuer and Lenders
. The Administrative Agent,
the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any
Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
10.03
No Waiver; Cumulative Remedies; Enforcement
. No
failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority
to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent in accordance with
Section 8.02
for the benefit of all the Lenders and the L/C Issuer;
provided
,
however
, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender
from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with
Section 10.08
(subject to the terms of
Section 2.13
),
or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law;
provided
,
further
, that if at any time there is no Person acting as Administrative Agent hereunder and under the
other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 8.02
and (ii)
in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13
, any Lender may, with the consent of
the Required Lenders, enforce any rights and remedies available to it
and as authorized by the Required Lenders.
10.04
Expenses; Indemnity; Damage Waiver
.
(a)
Costs and Expenses
. The Company shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and time
charges for attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its
rights under this
Section 10.04
, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)
Indemnification by the Company
. The Company shall indemnify the Administrative
Agent (and any sub-agent thereof), the Joint Lead Arrangers, each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “
Indemnitee
”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee),
and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by
any Borrower, any other Loan Party or the Specified Designated Borrower arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by any Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company, any other Loan Party or the Specified Designated Borrower, and regardless of whether any
Indemnitee is a party thereto;
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 court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by
the Company, any other Loan Party or the Specified Designated Borrower against an Indemnitee such Indemnitee’s material breach of its obligation to fund any Revolving Credit Loan in accordance with the terms hereof, or any for breach in bad faith
of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company, such other Loan Party or the Specified Designated Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction. The Company shall only be required to reimburse the Indemnitees for a single counsel for the Administrative Agent and a single counsel for all other Indemnitees for related claims in each applicable jurisdiction;
provided
that an Indemnitee shall have the right to employ separate counsel, and the Company shall bear the reasonable fees, costs and expenses of such
separate counsel, if (1) the use of counsel chosen by the other Indemnitees to represent the Indemnitees would present such counsel with a conflict of interest; (2) such Indemnitee shall have reasonably concluded, in good faith, that there may be
legal claims or defenses available to it that are different from or additional to those available to the other Indemnitees; (3) such Indemnitee shall have reasonably concluded, in good faith, that it otherwise has divergent interests from the
other Indemnitees or (4) the Company shall authorize in writing such Indemnitee to employ separate counsel at the Company’s expense. Without limiting the provisions of
Section
3.01(c)
, this
Section 10.04(b)
shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, or
liabilities arising from any non-Tax claim.
(c)
Reimbursement by Lenders
. To the extent that the Company for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this
Section 10.04
to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against
any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d)
.
(d)
Waiver of Consequential Damages, Etc.
To the fullest extent permitted by applicable
law, no Borrower shall assert, and hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by
such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e)
Payments
. All amounts due under this
Section 10.04
shall be payable not later than ten Business Days after demand therefor.
(f)
Survival
. The agreements in this
Section 10.04
and the indemnity provisions of
Section 10.02(e)
shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Revolving Credit Facility and the repayment, satisfaction or discharge of all the other Obligations.
10.05
Payments Set Aside
. To the extent that any
payment by or on behalf of any Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of permitted by applicable Law, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations
and the termination of this Agreement.
10.06
Successors and Assigns
.
(a)
Successors and Assigns Generally
. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its rights or obligations hereunder or under the other Loan
Documents without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this
Section 10.06
, (ii) to a Purchasing Borrower Party in accordance with the provisions of subsection (i) of this
Section 10.06
, (iii) by way of participation in accordance with the provisions of subsection (d) of this
Section 10.06
, or (iv) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this
Section 10.06
(and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this
Section 10.06
and,
to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)
Assignments by Lenders
. Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time
owing to it);
provided
that any such assignment shall be subject to the following conditions:
(i)
Minimum Amounts
.
(
a)
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment under any Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(b)
in any case not described in subsection (b)(i)(A) of this
Section 10.06
, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any assignment in respect of a Term Facility unless each
of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed);
provided
,
however
, that concurrent assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii)
Proportionate Amounts
. Each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not (A) apply to the Swing Line
Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis;
(iii)
Required Consents
. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this
Section 10.06
and, in addition:
(A)
the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default pursuant to
Section 8.01(a)
,
8.01(f)
or
8.01(g)
has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided
that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within eight (8) Business Days after having
received notice thereof;
(B)
the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any Revolving Credit
Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund;
(C)
the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D)
the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit
Facility.
(iv)
Assignment and Assumption
. The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500;
provided
,
however
, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The
assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)
No Assignment
. No such assignment shall be made (i) to the Company or any of the
Company’s Affiliates or Subsidiaries, except in accordance with
Section 10.06(i)
, (ii) to any Defaulting Lender or any of its Subsidiaries, or any Person
who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii), or (iii) to a natural person.
(vi)
Certain Additional Payments
. In connection with any
assignment of rights and obligations of any Defaulting Lender that is a Revolving Credit Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the consent of the Company and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by such Defaulting Lender, to each of
which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon)
and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.
(vii)
No Assignment Resulting in Additional Indemnified
Taxes or Other Taxes
. No such assignment shall be made to any Person that would result in the imposition of Indemnified Taxes or Other Taxes in excess of the Indemnified Taxes or Other Taxes that would be imposed in the absence of
such assignment, except, so long as no Event of Default pursuant to Section
8.01(a)
,
8.01(f)
or
8.01(g)
has occurred and is continuing, to the extent that the Borrower consents to such assignment or the proposed
assignee agrees in favor of the Company to treat such excess Indemnified Taxes and Other Taxes as Excluded Taxes.
(viii)
Alternative Currencies
. Unless at the
time of any assignment a Default or Event of Default shall be continuing, any assignee hereunder shall certify upon acceptance of the assignment that it will make available to the Borrowers all Alternative Currencies specified in this Agreement
on the terms and conditions set forth herein.
(ix)
Should any assignment by a Lender qualify as a novation under French law, the parties hereto agree, for the purposes of article 1278 of the French
Code civil, that upon any transfer in accordance with this
Section 10.06
, the Collateral Documents executed with respect to any Loan Party organized under
the laws of France and the security created thereby shall be preserved for the benefit of the new Lender.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of
this
Section 10.06
, from and after the effective date specified in each Assignment and Assumption, if any, or the effective date of an assignment pursuant
to Section 10.13(d), the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 3.01
,
3.04
,
3.05
, and
10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment;
provided
,
that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender. Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this
Section
10.06
.
(c)
Register
. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “
Register
”). The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the
Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d)
Participations
. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “
Participant
”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under
Section 10.04(c)
without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01
that is required to be approved by all Lenders or each affected Lender. Subject to subsection (e) of this
Section 10.06
, each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01
,
3.04
and
3.05
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section 10.06
(it being understood that the documentation required under
Section 3.01(e)
shall be delivered to the Lender who
sells the participation);
provided
that such Participant (A) agrees to be subject to the provisions of
Sections 3.06
and
10.13
as if it were an assignee under subsection (b) of this
Section 10.06
and (B) shall not be entitled to receive any greater payment under
Section 3.01
or
3.04
, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except
to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Company’s request and
expense, to use reasonable efforts to cooperate with the Company to effectuate the provisions of
Section 3.06
with respect to any Participant. To the
extent permitted by law, each Participant also shall be entitled to the benefits of
Section 10.08
as though it were a Lender,
provided
such Participant agrees to be subject to
Section 2.13
as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Company, maintain a
register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “
Participant Register
”);
provided
that no Lender shall have any obligation to disclose all
or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in
the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding
any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)
Limitations upon Participant Rights
. A Participant shall not be entitled to receive
any greater payment under
Section 3.01
or
3.04
than the
applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A participant that would
be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 3.01
unless the Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e)
as though it were a Lender.
(f)
Certain Pledges
. Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided
that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g)
Electronic Execution of Assignments
. The words “execution,” “signed,” “signature,”
and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, Loan
Notices, Swing Line Loan Notices, waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act;
provided
that notwithstanding
anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved
by it.
(h)
Resignation as L/C Issuer or Swing Line Lender After Assignment
. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to the Company and
the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Company, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided
,
however
,
that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights,
powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Revolving Credit Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)
). If Bank of America
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require
the Lenders to make Base Rate Revolving Credit Loans or fund risk participations in outstanding Swing Line Loans pursuant to
Section 2.04(c)
. Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and
(b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.
(i)
Assignments to Purchasing Borrower Party
. Notwithstanding anything to the contrary
contained in this Agreement, any Lender may assign all or a portion of its Term Loans to any Purchasing Borrower Party;
provided
that:
(i)
such assignment shall be made pursuant to (x) an open market purchase on a non-pro rata basis or (y) a Dutch Auction open to all applicable Lenders on a pro rata basis;
(ii)
any Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such assignment
and will thereafter no longer be outstanding for any purpose hereunder;
(iii)
at the time of and immediately after giving effect to any such purchase, no Default or Event of Default shall exist;
(iv)
no purchase of any Term Loans shall be made from the proceeds of any Revolving Credit Loan or Swing Line Loan; and
(v)
the assignor will deliver to the Purchasing Borrower Party customary written assurance that it is a sophisticated investor and is willing to proceed with the assignment.
10.07
Treatment of Certain Information; Confidentiality
.
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process;
provided
that the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, shall, at the sole cost and expense of the Company, request confidential treatment of such confidential information to the extent practicable and permitted by applicable law and the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, shall, to the extent permitted by applicable law, promptly inform the Company with respect thereto so that the Company may seek appropriate protective relief to the extent
permitted by applicable law;
provided
,
further
, that in the
event such protective remedy or other remedy is not obtained, the Administrative Agent, such Lender or the L/C Issuer, as the case may be, shall furnish only that portion of the confidential information that is legally required and shall disclose
the confidential information in a manner reasonably designed to preserve its confidential nature and shall, at the sole cost and expense of the Company, cooperate with the Company’s counsel to enable the Company to attempt to obtain a protective
order or other reliable assurance that confidential treatment will be accorded to the Information, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this
Section 10.07
, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible
Assignee invited to be a Lender pursuant to
Section 2.17
or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to a Borrower and its obligations, (g) on a confidential basis to (i) any rating agency in connection with rating the Company or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or
any similar agency in connection with the issuance and monitoring of CUSIP numbers of other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Company or (i) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this
Section 10.07
or (y) becomes available to the Administrative Agent, any Lender, the
L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company, which source, to the actual knowledge of the Administrative Agent, such Lender or the L/C Issuer, as the case may be, is not
prohibited from disclosing such Information to such Person by a contractual, legal or fiduciary obligation to the Company, the Administrative Agent, any Lender or the L/C Issuer.
For purposes of this
Section
10.07
, “
Information
” means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary or any of
their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary. Any Person required to
maintain the confidentiality of Information as provided in this
Section 10.07
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information
may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material
non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
10.08
Right of Setoff
. If an Event of Default shall
have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or
the account of any Borrower (excluding for the avoidance of doubt any Designated Regulatory Cash) against any and all of the obligations of such Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or
the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower
be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on
such indebtedness;
provided
that (i)(a) the obligations of Foreign Subsidiaries that become Designated Borrowers and of the Specified Designated Borrower
are several and not joint, and (b) no Lender shall exercise any rights under this
Section 10.08
with respect to any assets of any Foreign Subsidiary other
than with respect to the direct obligations of such Foreign Subsidiary to the Lenders, and (ii) in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of
Section 2.15
and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable
detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section 10.08
are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees
to notify the Company and the Administrative Agent promptly after any such setoff and application;
provided
that the failure to give such notice shall not
affect the validity of such setoff and application.
10.09
Interest Rate Limitation
. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “
Maximum Rate
”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of
the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10
Counterparts; Integration; Effectiveness
. This
Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the
other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as
provided in
Section 4.01
, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11
Survival of Representations and Warranties
.
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12
Severability
. If any provision of this Agreement
or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and
(b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12
, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
10.13
Replacement of Lenders
. If (a) any Lender
requests compensation under
Section 3.04
, (b) any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to
Section 3.01
, (c) any Lender is a Defaulting Lender, (d) any Lender (a “
Non-Consenting Lender
”) refuses to consent to an amendment, modification or waiver of this Agreement that, pursuant to
Section
10.01
requires consent of all Lenders or all affected Lenders and that has been approved by the Required Lenders or (e) because a Lender is not legally permitted to lend in the relevant jurisdiction, the Company is not permitted,
under
Section 2.14(f)
, to designate a Designated Borrower approved by the Required Revolving Credit Lenders and the Administrative Agent, then the Company
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by,
Section 10.06
but subject to clause (d) below), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided
that:
(a)
the Company shall have paid (or caused a Designated Borrower to pay) to the Administrative Agent the assignment fee specified in
Section 10.06(b)
;
(b)
such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 2.05(c)
and
Section 3.05
) from the assignee, or as set forth in clause (d) below, the Administrative Agent (to the extent of such outstanding principal and accrued interest and fees) or the
Company or applicable Designated Borrower (in the case of all other amounts);
(c)
in the case of any such assignment resulting from a claim for compensation under
Section 3.04
or payments required to be made pursuant to
Section 3.0
1, such assignment will result in a reduction in such compensation or payments thereafter;
(d)
in the event such Lender is a Non-Consenting Lender, each assignee shall consent, at the time of such assignment, to each matter in respect of which such Lender was a
Non-Consenting Lender and the Company also requires each other Lender that is a Non-Consenting Lender to assign its Loans and Commitments;
provided
that
notwithstanding the provisions of
Section 10.06,
such Non-Consenting Lender shall not be required to comply with
Section 10.06(b)(iv)
and no Assignment and Assumption shall be required to effect such assignment and such assignment shall become effective as to any Non-Consenting Lender upon
receipt by it (or the Administrative Agent who shall promptly distribute such amounts to the applicable Non-Consenting Lender) of the amounts set forth in clause (b) above for the account of such Non-Consenting Lender; and for the avoidance of
doubt, notwithstanding the provisions of
Section 10.06
, no Assignment and Assumption shall be required in connection with any Third Amendment Assignments
and such Third Amendment Assignments shall become effective as to any Non-Consenting Lender upon the receipt by the Administrative Agent (who shall promptly distribute the same to the applicable Non-Consenting Lender) of the amounts set forth in
clause (b) above for the account of such Non-Consenting Lender; and
(e)
such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, reasonably promptly after
its receipt or notice from the Company pursuant to this
Section 10.13
, as a result of a waiver by such Lender or otherwise, the circumstances entitling
the Company to require such assignment and delegation cease to apply, or, in the case of clause (a) or (b) above, such Lender notifies the Company that the circumstances giving rise to such Lender’s request for compensation or additional amounts
shall not be used by such Lender as a basis for future requests under
Section 3.01
or
3.04
.
10.14
Governing Law; Jurisdiction; Etc.
(a)
GOVERNING LAW
. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS,
CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b)
SUBMISSION TO JURISDICTION
. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY
OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN
ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ANY OTHER BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)
WAIVER OF VENUE
. THE COMPANY AND EACH OTHER BORROWER IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION 10.14
. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d)
SERVICE OF PROCESS
. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN
THE MANNER PROVIDED FOR NOTICES IN
SECTION 10.02
. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY APPLICABLE LAW.
10.15
Waiver of Jury Trial
. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.15
.
10.16
No Advisory or Fiduciary Responsibility
. In
connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Joint Lead Arrangers, are arm’s-length commercial transactions between such Borrower and its
Affiliates, on the one hand, and the Administrative Agent and the Joint Lead Arrangers, on the other hand, (B) such Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)
such Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and the Joint Lead Arrangers, are and
have been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for such Borrower or any of its Affiliates, or any other
Person and (B) neither the Administrative Agent nor the Joint Lead Arrangers have any obligation to such Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein
and in the other Loan Documents; and (iii) the Administrative Agent and the Joint Lead Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such Borrower and
its Affiliates, and neither the Administrative Agent nor the Joint Lead Arrangers have any obligation to disclose any of such interests to such Borrower or its Affiliates. To the fullest extent permitted by law, each of the Borrowers hereby
waives and releases any claims that it may have against the Administrative Agent and the Joint Lead Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
10.17
Electronic Execution of Assignments and Certain Other
Documents
. The words “execution,” “signed,” “signature,” and words of like import in any Loan Document or any other document executed in connection herewith shall be deemed to include electronic signatures, the electronic matching of
assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act;
provided
that notwithstanding anything contained herein to the contrary neither the Administrative Agent, the L/C Issuer nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed
to by the Administrative Agent, the L/C Issuer or such Lender pursuant to procedures approved by it;
provided
,
further
, that without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.
10.18
USA PATRIOT Act
. Each Lender that is subject to
the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name and address of each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower in accordance with
the USA PATRIOT Act. Each Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
10.19
Judgment Currency
. If, for the purposes of
obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Borrower in respect of any such sum due from it to the Administrative
Agent or any Lender 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 provisions of this Agreement (the “
Agreement Currency
”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in
accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from any
Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to such Borrower (or
to any other Person who may be entitled thereto under applicable law).
10.20
CAM
Agreement
. Concurrently with any Lender becoming a party hereto, such Lender shall execute documentation reasonably satisfactory to the Administrative Agent to become party to the
CAM Agreement.
10.21
Certain Representations and Confirmations
.
(a)
Representation by Lenders
. Each Lender party to this Agreement on the Closing Date
represents and warrants that on the date hereof it is carrying on the business of providing finance, or investing or dealing in securities, in the course of operating in financial markets.
(b)
Borrower Confirmation
. The Company and the Specified Designated Borrower (being at
all relevant times members of the same wholly owned group) confirm that:
(i)
before this Agreement (described as being a “Syndicated Loan Facility”) was entered into, invitations for participation in the syndicated loan facility were made to at least
10 offerees (the “offerees”), each of whom, as at the date the relevant invitation was made, the Company’s relevant officers involved in the transaction on a day to day basis believed carried on the business of providing finance or investing or
dealing in securities in the course of operating in financial markets, for the purposes of s128F(3A)(a)(i) of the
Income Tax Assessment Act of 1936
(Commonwealth of Australia); and
(ii)
none of the offerees whose names were disclosed to the Company or the Specified Designated Borrower by MLPFS before the date of this Agreement were
known or suspected by the Company or the Specified Designated Borrower to be an Offshore Associate of either of them or an “Associate” (within the meaning of the
Income Tax Assessment Act of 1936
(Commonwealth of Australia)) of any other such offeree.
10.22
[Reserved]
.
10.23
Parallel Debt
.
(a)
Each Foreign Loan Party organized under the Laws of Belgium, Germany or the Netherlands, or any other applicable jurisdiction (each, a “
Specified Foreign Loan Party
”) hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent as creditor in its own right and not as a representative of the
Secured Parties (by way of an abstract acknowledgment of debt (
abstraktes Schuldanerkenntnis
, where applicable)) amounts equal to any amounts
owing from time to time by that Specified Foreign Loan Party to each of the Secured Parties under each of the Loan Documents as and when those amounts are due for payment under the relevant Loan Document.
(b)
Each Specified Foreign Loan Party and the Administrative Agent acknowledges that the obligations of each Specified Foreign Loan Party under paragraph (a) above are several and
are separate and independent from, and shall not in any way limit or affect, the corresponding obligations of that Specified Foreign Loan Party to any Secured Party under any Loan Document (its “
Corresponding Debt
”) nor shall the amounts for which each Specified Foreign Loan Party is liable under paragraph (a) above (its “
Parallel Debt
”) be limited or affected in any way by its Corresponding Debt;
provided
that:
(i)
the Parallel Debt of each of the Specified Foreign Loan Parties will be payable in the currency or currencies of its Corresponding Debt and will become due and payable as and
when and to the extent one or more of its Corresponding Debt become due and payable;
(ii)
each Parallel Debt constitutes an undertaking, obligation and liability to the Administrative Agent which is separate and independent from, and
without prejudice to, the Corresponding Debt of the relevant Specified Foreign Loan Party;
(iii)
each Parallel Debt represents the Administrative Agent’s own separate and independent claim to receive payment of the Parallel Debt from the
relevant Specified Foreign Loan Party;
(iv)
the Administrative Agent shall not demand payment with regard to the Parallel Debt of each Specified Foreign Loan Party to the extent that such Loan
Party’s Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;
(v)
a Secured Party shall not demand payment with regard to the Corresponding Debt of each Specified Foreign Loan Party to the extent that such Specified Foreign Loan Party’s
Parallel Debt has been irrevocably paid or (in the case of guarantee obligations) discharged; and
(vi)
with respect to any Specified Foreign Loan Party organized under the Laws of Netherlands, an Event of Default in respect of the Corresponding Debt
shall constitute a default (verzuim) within the meaning of section 3:248 of the Dutch Civil Code with respect to the Parallel Debt without any notice being required.
(c)
The Administrative Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The security granted under the
Collateral Documents to the Administrative Agent to secure the Parallel Debt is granted to the Administrative Agent in its capacity as creditor of the Parallel Debt.
(d)
All monies received or recovered by the Administrative Agent pursuant to this
Section 10.23
,
and all amounts received or recovered by the Administrative Agent from or by the enforcement of any security granted to secure the Parallel Debt, shall be applied in accordance with this Agreement; provided that upon irrevocable receipt by the
Administrative Agent of any amount in payment of a Parallel Debt (a “
Received Amount
”), the Corresponding Debt of the relevant Specified Foreign Loan Party
towards the Administrative Agent and the Lenders shall be reduced, if necessary
pro rata
in respect of the Administrative Agent and each Lender
individually, by amounts totaling an amount (a “
Deductible Amount
”) equal to the Received Amount in the manner as if the Deductible Amount were received by
the Administrative Agent and the Lenders as a payment of the Corresponding Debt owed by the relevant Specified Foreign Loan Party on the date of receipt by the Administrative Agent of the Received Amount.
(e)
Without limiting or affecting the Administrative Agent’s rights against the Specified Foreign Loan Parties (whether under this
Section 10.23
or under any other provision of the Loan Documents), each Foreign Loan Party acknowledges that:
(i)
nothing in this
Section 10.23
shall impose any obligation on the Administrative
Agent to advance any sum to any Loan Party or otherwise under any Loan Document, except in its capacity as a Lender; and
(ii)
for the purpose of any vote taken under any Loan Document, the Administrative Agent shall not be regarded as having any participation or commitment
other than those which it has in its capacity as a Lender.
10.24
Additional Appointment
.
For the purposes of any Foreign Subsidiary Pledge Documents governed by Italian law, each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act, on its name and its behalf, as
procuratore con rappresentanza
pursuant to Article 1387 and following of the Italian civil code and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent, in acting as such, will be
entitled to the benefits of
Article IX
hereto in all respects.
10.25
Appointment of Company
.
Each of the Loan Parties that is a party hereto hereby appoints the Company to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and
agrees that (a) the Company may execute such documents and provide such authorizations on behalf of such Loan Parties as the Company deems appropriate in its sole discretion and each Loan Party shall be obligated by all of the terms of any such
document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Administrative Agent, L/C Issuer or a Lender to the Company shall be deemed delivered to each Loan Party and (c) the Administrative Agent, L/C
Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Company on behalf of each of the Loan Parties.
10.26
Acknowledgement and Consent to Bail-In of EEA Financial
Institutions
. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by:
(a)
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that
is an EEA Financial Institution; and:
(b)
the effects of any Bail-in Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent
undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.
10.27
ERISA
.
(a)
Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto
to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Company or any other Loan Party, that at least one of the following is and
will be true:
(i)
such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(ii)
the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such
Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters 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 Part VI of PTE 84-14), (B) such
Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84¬14 and (D) to the best knowledge of such
Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the 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 either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation,
warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such
Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Company or any other Loan Party, that
the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this
Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
10.28
Acknowledgement Regarding Any Supported QFCs
. To the extent that the Loan Documents provide support, through a
guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the
“U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of
the State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported
QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered
Party will be effective to the same extent as the transfer would be effective under the 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 of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the
U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
[
Signature Pages
Intentionally Omitted
]
