UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 26, 2017
LogMeIn, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 001-34391 | 20-1515952 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer
Identification Number) |
||
320 Summer Street Boston, Massachusetts |
02210 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (781)-638-9050
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
Merger with GoTo Business
At 11:59 p.m. eastern time on January 31, 2017 (the Closing Date ), LogMeIn, Inc. (the Company ) completed the transactions (the Transactions ) contemplated by the previously disclosed (i) Agreement and Plan of Merger, dated as of July 26, 2016, by and among the Company, Lithium Merger Sub, Inc., Citrix Systems, Inc. ( Citrix ) and GetGo, Inc. ( GetGo ) (as amended, the Merger Agreement ), and (ii) Separation and Distribution Agreement by and among Citrix, GetGo and the Company, dated as of July 26, 2016 (the Separation Agreement ). The completion of the Transactions, including the merger of Lithium Merger Sub, Inc. with and into GetGo, with GetGo surviving the merger as a wholly owned subsidiary of the Company (the Merger ), resulted in the acquisition by the Company of Citrixs GoTo family of service offerings (the GoTo Business ).
Prior to the Merger and pursuant to the Separation Agreement, Citrix transferred the GoTo Business to GetGo and its subsidiaries (the Separation ) and thereafter distributed all of the outstanding shares of common stock, par value $0.01 per share, of GetGo (the GetGo Common Stock ), to Citrix stockholders of record as of January 20, 2017 on pro rata basis (the Distribution ). At the effective time of the Merger (the Effective Time ), each issued and outstanding share of GetGo Common Stock was automatically converted into the right to receive one share of common stock, par value $0.01 per share, of the Company (the LMI Common Stock ), together with cash in lieu of any fractional shares. LogMeIn issued 26,868,269 shares of LMI Common Stock in connection with the Merger, with Citrix stockholders receiving 0.1718 shares of LMI Common Stock for each share of common stock, par value $0.01 per share, of Citrix (the Citrix Common Stock ), held as of January 20, 2017.
In addition, at the Effective Time, all Citrix restricted stock unit awards held by employees of GetGo (other than Citrix performance-based restricted stock units with respect to Citrixs 2014 through 2016 performance period) were, after giving effect to any applicable accelerated vesting provisions, automatically cancelled and will be substituted with Company restricted stock units. The number of shares of LMI Common Stock subject to each Company restricted stock unit will equal the number of shares of Citrix Common Stock subject to the corresponding Citrix restricted stock unit as of immediately before the Effective Time, multiplied by an adjustment ratio and rounded down to the nearest whole share of LMI Common Stock. The adjustment ratio will equal the quotient obtained by dividing the volume-weighted average per-share trading price of Citrix Common Stock on the five trading days immediately prior to Closing Date by the volume-weighted average per-share trading price of LMI Common Stock on the five trading days immediately following Closing Date. The Company expects to issue approximately 460,000 Company restricted stock units in substitution for outstanding Citrix restricted stock units in connection with the Merger, however the actual number of Company restricted stock units to be issued will be determined after the completion of five trading days following the Closing Date.
Including the estimated 460,000 shares of LMI Common Stock to be issued following the Merger as Company restricted stock units as described above, as of immediately following the Effective Time, Citrix equityholders owned approximately 50.1% of LMI Common Stock on a fully diluted basis. Based on the closing stock price of LMI Common Stock of $108.10 on January 31, 2017 as reported by the NASDAQ Global Select Market, the total value of the shares of LMI Common Stock being issued to Citrix equityholders in the Merger is approximately $3.0 billion.
As previously disclosed, approval by the California Public Utilities Commission ( CPUC ) for the transfer of control of GetGo Communications LLC and Grasshopper Group, LLC (together, the Regulated Subsidiaries ), which provide intrastate telecommunications services to GetGo in California, was delayed. Approval by the CPUC for the transfer of control of the Regulated Subsidiaries was necessary to satisfy a closing condition to the Merger Agreement. In light of the delay, the Company and Citrix agreed to waive the closing condition and further agreed to preserve Citrixs control of the Regulated Subsidiaries pending the CPUCs approval of the transfer of control of those entities. The Regulated Subsidiaries continue to provide intrastate telecommunications services to GetGo in California, and the Company will automatically acquire control of the Regulated Subsidiaries upon receipt of approval from the CPUC. As previously disclosed, approval by the Hawaii Public Utilities Commission for the transfer of control of Grasshopper Group, LLC, which also provides intrastate telecommunications services to GetGo in Hawaii, was also delayed but was ultimately obtained prior to the Closing Date.
The foregoing description of the Transactions does not purport to be complete and is qualified in its entirety by reference to the full text of (i) the Merger Agreement, which was filed with the U.S. Securities and Exchange Commission (the SEC ) as Exhibit 2.1 to the Companys Current Report on Form 8-K/A on July 28, 2016, as amended by Amendment No. 1, which was filed with the SEC as Exhibit 2.7 to the Companys Amendment No. 3 to Registration Statement on Form S-4 on December 13, 2016, (ii) the Separation Agreement, which was filed with the SEC as Exhibit 2.2 to the Companys Current Report on Form 8-K/A on July 28, 2016, and (iii) the Companys Current Report on Form 8-K filed with the SEC on January 23, 2017, each of which is incorporated herein by reference.
In connection with the consummation of the Transactions, the Company, Citrix and GetGo also entered into certain other agreements, which are summarized below.
Employee Matters Agreement
At the Effective Time, Citrix, GetGo and the Company entered into an Employee Matters Agreement (the Employee Matters Agreement ) governing the allocation among them of certain assets, liabilities and responsibilities relating to employees, including compensation and benefit plans and programs.
Subject to certain exceptions and excluding certain agreed upon employees, prior to the Distribution, Citrix and GetGo caused the employment of the Citrix employees who perform services primarily related to the GoTo Business to be transferred to GetGo or an entity that would be a GetGo subsidiary following the Distribution (individually, a GetGo Group Member , or collectively, the GetGo Group ), in the applicable jurisdiction.
Generally, Citrix retained all obligations and liabilities with respect to (a) employees employed by a GetGo Group Member as of the Distribution and certain Citrix employees on disability leave as of the Distribution who will later become employed by a GetGo Group Member, (collectively, the GetGo Employees ) and (b) current and former Citrix employees, in each case that were incurred prior to or on the date of the Distribution, other than liabilities relating to GetGo Employees that transfer to the GetGo Group by operation of law. The GetGo Group assumed or retained all obligations and liabilities with respect to GetGo Employees that are incurred following the date of the Distribution or that transfer to GetGo by operation of law.
Following the date of the Distribution, GetGo Employees ceased to participate in the health and welfare benefit plans sponsored by Citrix and its subsidiaries. Instead, GetGo Employees are now entitled to participate in health and welfare benefit plans maintained by the Company or the GetGo Group that correspond with and are substantially similar to the Citrix benefit plans in which the GetGo Employees participated prior to the Distribution or in which similarly situated Company employees participate.
Citrix is responsible for severance and termination benefit costs incurred in connection with the transfer of GetGo Employees employment to the GetGo Group or terminations of employment occurring prior to the Distribution and in connection with Citrixs internal reorganization (unless the termination was requested by the Company) and the Company and the GetGo Group are responsible for severance and termination benefit costs incurred in connection with the termination of GetGo Employees prior to the Distribution at the request of the Company, or following the Distribution. GetGo Employees who incur a termination of service within the twelve-month period following the Distribution will be entitled to receive severance payments and benefits that are the same as the severance payments and benefits provided to similarly situated employees of the Company.
Citrix is required to cause the account balance of each GetGo Employee under Citrixs 401(k) plan to become fully vested as of the Distribution. In addition, Citrix is required to cause its 401(k) plan to permit the rollover of account balances, including loans, to the Companys 401(k) plan to the extent permitted by law and to cause any outstanding loans of GetGo Employees under its 401(k) plan to remain outstanding and not go into default until the first to occur of the end of the first full calendar quarter following the Distribution or the earlier rollover of the applicable account to the Companys 401(k) plan.
Prior to the Distribution, the Company established or designated dependent care and medical care flexible spending account benefit plans for GetGo Employees. The account balances and contribution elections of GetGo Employees under Citrixs flexible spending account benefit plans transferred to the Companys flexible spending account benefit plans, and the Companys flexible spending account benefit plans assumed responsibility for outstanding claims under Citrixs flexible spending account benefit plans attributable to GetGo Employees for the year in which the Distribution occurred. Following the Distribution, Citrix is required to transfer to GetGo the
contributions made by GetGo Employees to Citrixs flexible spending account benefit plans for the plan year in which the Distribution occurred, reduced by the amount of the total claims paid by Citrixs flexible spending account benefit plans for GetGo Employees for the plan year.
Upon the Distribution, GetGo Employees ceased to participate in any cash bonus plan maintained by Citrix, and Citrix is required to pay the GetGo Employees a prorated cash bonus based on target performance levels. GetGo Employees also ceased to participate in any Citrix sales plans as of the Distribution. Citrix is required to pay to the GetGo Employees their sales commissions under the Citrix sales plans for any transactions that closed prior to the Distribution, to the extent such employee would have been eligible to receive such commissions pursuant to the terms of the applicable sales plan if the Distribution had not occurred.
All Citrix stock options held by GetGo Employees prior to the Effective Time remain outstanding following the Effective Time as options to purchase Citrix Common Stock in accordance with and subject to the terms of the applicable options. In addition, all Citrix performance-based restricted stock units held by GetGo Employees prior to the Effective Time with respect to Citrixs 2014 through 2016 performance period remain outstanding following the Effective Time and continue to constitute the right to earn shares of Citrix Common Stock based on the actual performance of Citrix during the 2014 through 2016 performance period in accordance with the terms of the applicable awards, except that the Merger and the related transactions do not constitute a termination of employment for purposes of the Citrix performance-based restricted stock units. All other outstanding Citrix restricted stock units held by GetGo Employees prior to the Effective Time were cancelled and substituted for Company restricted stock units as described above.
Citrix restricted stock units that were subject to performance-based vesting conditions (other than Citrix performance-based restricted stock units with respect to the 2014 through 2016 performance period) were adjusted by Citrix based on an interim performance assessment as if the applicable performance period ended on the day immediately prior to the Effective Time and were prorated based on the portion of the performance period which had then elapsed, rounded down to the nearest whole share. Company restricted stock units issued in substitution for these Citrix performance-based restricted stock units have substantially the same terms and conditions as applied to the corresponding Citrix performance-based restricted stock units, as adjusted, immediately before the Effective Time except that the Company restricted stock units are not subject to performance-based vesting conditions and instead are subject to cliff vesting on the final day of the applicable performance period. Company restricted stock units issued in substitution for Citrix restricted stock units that were subject to time-based vesting conditions immediately before the Effective Time have substantially the same terms and conditions as applied to the corresponding Citrix restricted stock units immediately before the Effective Time.
GetGo Employees ceased to participate in the Citrix employee stock purchase plan as of the Distribution and were entitled to receive from Citrix a lump sum payment for their payroll deductions not previously used to purchase Citrix Common Stock under the plan.
The applicable GetGo Group Member assumed and credited GetGo Employees with unused vacation and personal and sick days accrued prior to the Distribution unless payment of such accrued days was required by law to be made in connection with the Distribution (in which case Citrix was required to make such payment as of or prior to the Distribution).
The foregoing description of the Employee Matters Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Employee Matters Agreement filed herewith as Exhibit 2.1 and incorporated herein by reference.
Intellectual Property License Agreement
At the Effective Time, Citrix, the Company and GetGo entered into an Intellectual Property License Agreement (the IP License Agreement ) that provides GetGo Group Members a non-exclusive, limited license to certain intellectual property and technology that was not exclusively used in connection with the GoTo Business and therefore not transferred to GetGo in connection with the Separation, as well as improvements to that intellectual property and technology, and a non-exclusive license under certain of Citrixs patents. In addition, GetGo granted Citrix a non-exclusive, limited license to certain intellectual property and technology which was transferred to GetGo in connection with the Separation, as well as improvements to that intellectual property and technology.
GetGo and its subsidiaries have a limited, worldwide, royalty-free, fully paid-up, non-exclusive license in, to and under Citrixs ShareConnect software, and to patents that cover any improvements made by Citrix or its
affiliates to the ShareConnect software to use, make, have made, sell, have sold, import, reproduce, make improvements of, prepare derivative works from, use and modify source code, distribute copies, publicly perform, or publicly display and otherwise exploit the same solely in connection with the GoToMyPC service, as GoToMyPC existed at the Effective Time and including extensions, upgrades and evolutions thereof.
GetGo and its subsidiaries have a limited, worldwide, royalty-free, fully paid-up, nonexclusive license in to and under Citrixs Recapit software, and to patents that cover any improvements made by Citrix or its affiliates to the Recapit software to use, make, have made, sell, have sold, import, reproduce, make improvements of, prepare derivative works from, use and modify source code, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products and services of GetGo as they existed at the Effective Time and including extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
GetGo and its subsidiaries have a limited, worldwide, royalty-free, fully paid-up, non-exclusive license in, to and under three categories of patents: (i) patents owned by Citrix or its subsidiaries as of the closing of the Transactions having one or more valid and enforceable claims that would be infringed by the products and services of the GoTo Business in the absence of the license as of the closing of the Transactions; (ii) patents that cover any improvements made by Citrix or its affiliates to the intellectual property licensed to GetGo by Citrix under the IP License Agreement; and (iii) patents issuing from , and national or international counterparts to, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions of, any of the patents described in the first two categories. The license includes the rights to use, develop, make, have made, sell, have sold, offer for sale and import products or services of GetGo and its subsidiaries and extensions, upgrades and evolutions thereof, though solely to the extent that such products and services would infringe a valid and enforceable claim of any of the licensed patents.
The IP License Agreement also includes a license to any intellectual property that should have been assigned, transferred or licensed to GetGo in connection with the Transactions, but which by oversight or omission was not. Specifically, the IP License Agreement provides GetGo with a limited, worldwide, royalty-free, fully paid-up, non-exclusive license in, to and under any such omitted intellectual property (other than trademarks) which was required to be assigned and transferred to GetGo and its Subsidiaries but which was not so assigned and transferred, or which was used in the GoTo Business as of the closing of the Transactions and not licensed to GetGo and its subsidiaries pursuant to the IP License Agreement. The license granted is to use such intellectual property in connection with GetGos business, including GetGos products and services as of the closing of the Transactions, together with extensions, upgrades and evolutions thereof, and includes the rights to make, have made, use, sell, have sold, offer for sale, and import any such products or services, and reproduce, make improvements of, prepare derivative works from, use and modify source code, distribute copies, publicly perform, or publicly display and otherwise exploit such intellectual property in connection with GetGos products and services. The term of the license commences with respect to any item of omitted intellectual property automatically and immediately prior to the earlier of such time as (1) either Citrix or GetGo becomes aware of and notifies the other in writing of such intellectual property, or (2) Citrix or a subsidiary that Citrix controls no longer exclusively owns and controls such intellectual property.
Citrix and its subsidiaries have a limited, worldwide, royalty-free and fully paid-up, non-exclusive license in, to and under GetGos GoToMyPC software, and to patents that cover any improvements made by GetGo or its affiliates to GoToMyPC software, to use, make, have made, sell, have sold, import, reproduce, make improvements of, prepare derivative works from, use and modify source code, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with Citrixs ShareConnect software, as ShareConnect exists as of the closing of the Transactions, including extensions, upgrades and evolutions thereof. However, for three years following the closing of the Transactions, Citrix and its subsidiaries have agreed not to sell, license, distribute, commercialize or otherwise make ShareConnect freely or commercially available as a stand-alone product or service.
Citrix has a limited, worldwide, royalty-free and fully paid-up, non-exclusive license in, to and under GetGos Unicast, Screencast and Concierge software, and to patents that cover any improvements made by GetGo or its affiliates to such software, to use, make, have made, sell, have sold, import, reproduce, make improvements of, prepare derivative works from, use and modify source code, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products and services of Citrix and its subsidiaries and extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
Citrix has a limited, worldwide, royalty-free and fully paid-up, non-exclusive license in, to and under GetGos codec software (the Codec ) to use and make improvements to that software in connection with the products and services of Citrix. However, the license is limited to those products and services of Citrix into which the Codec software is incorporated as of the closing of the Transactions, as such products and services exist as of the closing of the Transactions (though including extensions, upgrades and evolutions thereof). In addition, Citrix and GetGo have entered into a support agreement pursuant to which GetGo agreed to assist Citrix with bug fixes, troubleshooting and other technical support with respect to GetGos Codec software.
Citrix and its subsidiaries have a limited, worldwide, royalty-free, fully paid-up, non-exclusive license in, to and under three categories of patents: (i) patents owned by GetGo or its subsidiaries as of the closing of the Transactions, including the patents included in the assets transferred to GetGo and any patents filed in GetGos name through the closing of the Transactions; (ii) patents that cover any improvements made by GetGo or its affiliates to the intellectual property licensed to Citrix by GetGo under the IP License Agreement; and (iii) patents issuing from, and national or international counterparts to, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions of, any of the patents described in the first two categories. The license includes the rights to use, develop, make, have made, sell, have sold, offer for sale and import products or services of GetGo and its subsidiaries and extensions, upgrades and evolutions thereof, though solely to the extent that such products and services would infringe a valid and enforceable claim of any of the licensed patents.
The IP License Agreement includes a restriction on Citrixs use of the intellectual property licensed from GetGo to Citrix with regards to certain competitive business activities that are set forth in the Merger Agreement. The restriction commences upon the Effective Time and continues with respect to each item of intellectual property licensed by GetGo to Citrix until GetGo or a subsidiary that it controls no longer exclusively owns or controls such item of intellectual property.
The term of the IP License Agreement is different for each type of licensed intellectual property. First, for each patent included in the licensed intellectual property, the term lasts with respect to such patent until it no longer has a valid and enforceable claim licensed to the applicable licensee. Second, for each copyright, the term lasts until such copyright expires or enters into the public domain. Lastly, for all other intellectual property, the term is perpetual.
The IP License Agreement addresses additional obligations of Citrix and GetGo relating to assignments, specific performance, confidentiality, prosecution, maintenance and enforcement of intellectual property, and compliance with laws.
The foregoing description of the IP License Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the IP License Agreement filed herewith as Exhibit 2.2 and incorporated herein by reference.
Transition Services Agreement
At the Effective Time, the Company and certain GetGo Group Members entered into a Transition Services Agreement with Citrix and certain of its subsidiaries (the Transition Services Agreement ), pursuant to which each party will provide to the other party certain services on a transitional basis following the completion of the Transactions to facilitate the Separation and the transition of the GoTo Business to the Company. Among other services, the transition services generally relate to information technology and security operations, facilities, human resources support and accounting and finance support.
Each party will provide the transition services in a commercially reasonable manner in accordance with the standards, specifications, service levels and acceptance criteria, if any, set forth in the services schedule. The transition services will be provided at the same level of service, with the same degree of care, with response times and in a manner as would reasonably and ordinarily be expected from a person complying with law engaged in the same type of undertaking under the same or similar circumstances and conditions, unless a higher standard is required by the schedules to the Transition Services Agreement.
The term of the transition services will vary by service. A recipient of services may request that the term of the services be extended and the party providing that service may agree to extend the term of such services in its sole discretion. The fees payable for any extended service will be 110% of the fees payable for that service immediately prior to the extension.
Each recipient of services may terminate any service, in whole or in part, on written notice to the other party delivered no later than thirty (30) days prior to the service termination date specified in the schedule to the Transition Services Agreement. In the event of an early termination, the fees payable by the recipient will be reduced to reflect the terminated service or portion thereof. In addition, either party is able to terminate all, but not less than all, of the transition services in the affected line of services, or all of the transition services in their entirety, if the other party materially breaches its obligations under the agreement and does not cure that breach within thirty (30) days after receiving written notice of the breach. Either party may also terminate the agreement upon thirty (30) days notice if the other is declared insolvent or bankrupt or makes an assignment for the benefit of creditors, or a receiver is appointed or any proceeding is demanded by, for or against the other party under any provision of the federal bankruptcy laws.
Generally, each recipient of services will pay fees for each service it receives, which fees are specified on a schedule to the Transition Services Agreement. During the first six months after the Effective Time, the fees will be equal to the actual direct cost to provide the services, plus 5% and thereafter will be equal to the actual direct cost to provide the services, plus 10%. The fees for additional services during the first six months after the Effective Time will be equal to the actual direct cost to provide the additional services, plus 5% and thereafter are equal to the actual direct costs plus 10%. GetGo and Citrix agreed to share equally the costs and expenses incurred in connection with certain startup costs for providing the services.
Citrix and GetGo agreed to indemnify each other and its affiliates from any and all damages arising or resulting from the indemnifying partys fraud, gross negligence or intentional misconduct in performing its obligations under the Transition Services Agreement. Except for breaches of confidentiality and for a partys fraud, gross negligence or willful misconduct, (i) neither party has any liability for any indirect, incidental, consequential or similar damages under the Transition Services Agreement, and (ii) each partys liability for direct damages under the Transition Services Agreement will not exceed the amount of fees paid and payable to it by the other party during the six-month period following the effective date of the Transition Services Agreement.
The foregoing description of the Transition Services Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of Transition Services Agreement filed herewith as Exhibit 2.3 and incorporated herein by reference.
Cooperation Agreement
In connection with the election of Jesse A. Cohn to the Companys Board of Directors (the Board ), the Company and Elliott Associates, L.P., Elliott International, L.P. and Elliott International Capital Advisors Inc. (collectively, Elliott Management ) entered into a letter agreement, dated as of January 31, 2017 (the Cooperation Agreement ), which became effective at the Effective Time upon Mr. Cohns election to the Board. Under the Cooperation Agreement, Elliott Management has agreed to vote, or cause to be voted, all shares of LMI Common Stock owned by Elliott Management or its controlled or controlling affiliates at the 2017 Annual Meeting, and at any subsequent annual meeting of the Companys stockholders at which Mr. Cohn has been nominated by the Board for re-election as a director or continues to serve as a director in a class whose term will not expire at such meeting, in favor of the directors nominated by the Board and otherwise in accordance with the recommendation of the Board on any proposals other than a proposal on any tender offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company (an Extraordinary Transaction ).
In addition, Elliott Management agreed to certain standstill restrictions until the first anniversary of the date of the Cooperation Agreement, provided that if Mr. Cohn remains a director on such date, the standstill restrictions will continue until the earlier of the date that the Board fails to re-nominate Mr. Cohn as a director for election at an annual meeting of the Companys stockholders at which Mr. Cohns term of office expires or the date that Mr. Cohn resigns as a director. These standstill restrictions include not (i) engaging in any solicitation of proxies or consents with respect to the election or removal of directors; (ii) forming or joining a group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to LMI Common Stock and other voting securities of the Company; (iii) beneficially owning more than 9.9% of the voting power of, or economic exposure to, the LMI Common Stock; (iv) making or participating in any Extraordinary Transaction; (v) seeking, alone or in
concert with others, representation on the Board or the removal of any member of the Board, except as provided in the Cooperation Agreement; or (vi) making any stockholder proposal. The standstill restrictions terminate automatically upon certain events, including (a) the announcement by the Company of a definitive agreement with respect to an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the LMI Common Stock, or (b) the commencement of any tender or exchange offer that, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the then-outstanding LMI Common Stock, the Company files a Schedule 14D-9 (or any amendment thereto) that does not recommend that the Companys stockholders reject such tender or exchange offer.
The foregoing description of the Cooperation Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of Cooperation Agreement filed herewith as Exhibit 10.1 and incorporated herein by reference.
Credit Agreement
On February 1, 2017, the Company entered into an Amended and Restated Credit Agreement (the Credit Agreement ) by and between the Company and a syndicate of banks (the Lenders ) for which JPMorgan Chase Bank, N.A. acted as Administrative Agent and J.P. Morgan Chase Bank N.A., Wells Fargo Securities, LLC, and RBC Capital Markets acted as Joint Bookrunners, Lead Arrangers, and Syndication Agents. The Credit Agreement amends and restates the Companys existing credit agreement with the Lenders dated as of February 18, 2015, as amended on January 22, 2016 to, among other things:
| increase the Companys secured revolving credit facility from $150 million to $400 million in the aggregate (the Revolving Facility ). The Credit Agreement also permits the Company to increase the Revolving Facility and/or enter into one or more tranches of term loans up to an additional $200 million subject to further commitment from the Lenders or additional lenders; |
| include Australian Dollars as a currency available for borrowing under the Revolving Facility; |
| extend the maturity date of the Revolving Facility to February 1, 2022, meaning that revolving loans under the Revolving Facility may be borrowed, re-paid and re-borrowed until February 1, 2022, at which time all amounts outstanding must be repaid; |
| adjust interest rates such that interest rates for U.S. Dollar loans under the Revolving Facility are determined, at the option of the Company, by reference to a Eurodollar rate or a base rate, ranging from 1.25% to 2.00% above the Eurodollar rate for Eurodollar-based borrowings or from 0.250% to 1.00% above the defined base rate for base rate borrowings, in each case based upon the Companys total leverage ratio. Interest rates for loans in currencies other than U.S. Dollars will range from 1.25% to 2.00% above the respective London interbank offered interest rates for those currencies, also based on the Companys total leverage ratio; |
| eliminate the financial covenant with respect to capital expenditures and require the Company to maintain a maximum consolidated senior secured leverage ratio, a maximum consolidated total leverage ratio, and a minimum consolidated fixed charge coverage ratio, each as further defined in the Credit Agreement; |
| remove LogMeIn Ireland Holding Company Limited ( LogMeIn Ireland ) as a named borrower under the facility, and remove any material subsidiaries of LogMeIn Ireland as guarantors of the Revolving Facility; and |
| adjust the quarterly commitment fee on the undrawn portion of the Revolving Facility such that it ranges from 0.150% to 0.30% per annum, based upon the Companys total leverage ratio. |
The Credit Agreement contains customary affirmative and negative covenants, including covenants that limit or restrict the Company and its subsidiaries ability to, among other things, incur indebtedness, grant liens, merge or consolidate, dispose of assets, change the nature of its business, make investments and acquisitions, pay dividends or make distributions, or enter into certain transactions with affiliates, in each case subject to customary and other exceptions for a credit facility of this size and type, each as further described in the Credit Agreement.
The Credit Agreement also contains events of default including, among other things, non-payment defaults, inaccuracy of representations and warranties, covenant defaults, cross default to material indebtedness, bankruptcy and insolvency defaults, material judgment defaults, ERISA defaults and a change of control default. The occurrence of an event of default could result in the acceleration of the obligations under the Credit Agreement. Under certain circumstances, a default interest rate will apply on all unpaid and overdue amounts (including principal, interest and fees) under the Credit Agreement at a per annum rate equal to 2.00% above the applicable interest rate or 2.00% above the defined base rate.
The foregoing description of the Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of Credit Agreement filed herewith as Exhibit 10.2 and incorporated herein by reference.
Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The information contained in Item 1.01 of this Current Report on Form 8-K above with respect to the consummation of the Transactions is incorporated by reference into this Item 2.01. The description of the Transactions in Item 1.01 of this Current Report on Form 8-K above does not purport to be complete and is qualified in its entirety by reference to the full text of (i) the Merger Agreement, which was filed with the SEC as Exhibit 2.1 to the Companys Current Report on Form 8-K/A on July 28, 2016, as amended by Amendment No. 1, which was filed with the SEC as Exhibit 2.7 to the Companys Amendment No. 3 to Registration Statement on Form S-4 on December 13, 2016, and (ii) the Separation Agreement, which was filed with the SEC as Exhibit 2.2 to the Companys Current Report on Form 8-K/A on July 28, 2016, each of which is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation of an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 1.01 of this Current Report on Form 8-K above with respect to entering into the Credit Agreement is incorporated by reference into this Item 2.03. The description of the Credit Agreement in Item 1.01 of this Current Report on Form 8-K above does not purport to be complete and is qualified in its entirety by reference to the full text of Credit Agreement filed herewith as Exhibit 10.2 and incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Departure of Directors; Election of Directors
As previously disclosed, the composition of the Board and its committees changed at the Effective Time. In accordance with the Merger Agreement, the size of the Board consists of nine directors, including five directors who were serving on the Board prior to the closing of the Merger and four individuals designated by Citrix and satisfactory to the Company. The Board consists of three classes Class I, Class II and Class III.
Effective as of the closing of the Merger, each of Steven G. Chambers (who was a director serving in Class III), Gregory W. Hughes (who was a director serving in Class I) and Marilyn Matz (who was a director serving in Class I) resigned from the Board. In addition, each of Steven J. Benson and Michael J. Christenson (both of whom were directors serving in Class II) resigned from the Board and were elected to the Board in a different class. The four individuals designed by Citrix pursuant to the Merger Agreement, Robert M. Calderoni, Jesse A. Cohn, David J. Henshall and Peter J. Sacripanti, were elected to fill vacancies on the Board, also effective as of the closing of the Merger. An Operating Committee of the Board was established and directors were appointed to the Operating Committee and the Companys other standing committees, effective upon the closing of the Merger.
Immediately following the closing of the Merger, the composition of the Board and its committees was as follows:
Director Name |
Director
Class |
Term
Expires |
Audit
Committee |
Compensation
Committee |
Nominating & Corporate Governance Committee |
Operating
Committee |
||||||||
Michael K. Simon* |
Class III |
2018 |
|
|||||||||||
Steven J. Benson |
Class I |
2019 |
|
|
||||||||||
Robert M. Calderoni |
Class I |
2019 |
|
|
||||||||||
Michael J. Christenson |
Class I |
2019 |
|
|
|
|||||||||
Jesse A. Cohn |
Class III |
2018 |
|
|||||||||||
Edwin J. Gillis◆ |
Class III |
2018 |
|
|||||||||||
David J. Henshall |
Class II |
2017 |
|
|
||||||||||
Peter J. Sacripanti |
Class II |
2017 |
|
|
||||||||||
William R. Wagner |
Class II |
2017 |
* = Chairman of the Board ◆= Lead Independent Director
= Committee Chair
= Committee member
The descriptions of the Board following the Effective Time and related matters contained in the Companys Current Report on Form 8-K filed with the SEC on January 6, 2017 are incorporated herein by reference.
Compensatory Arrangements of Certain Officers
Unrelated to the closing of the Merger and its related Transactions, on January 26, 2017, the Board approved the performance-based cash incentive bonuses earned by the Companys executive officers in fiscal 2016, as calculated by the Boards Compensation Committee (the Committee ). The Companys executive officers are entitled to participate in the Companys annual cash incentive bonus program. Annual cash incentive bonuses are intended to compensate for the achievement of Company strategic, operational and financial goals and/or individual performance objectives. Amounts payable are discretionary and are typically calculated as a percentage of the applicable executive officers base salary, with higher ranked executives typically being compensated at a higher percentage of base salary. At the beginning of each fiscal year, the Committee establishes a target performance level for the Company based on the Companys satisfaction of certain performance metrics which are set in advance by the Committee. Typically, these cash incentive bonuses are paid after the completion of the applicable fiscal year, based on the Companys actual performance versus the established performance metrics. In the event that the Companys actual performance exceeds or falls short of the target performance level, bonus amounts are increased or decreased accordingly.
The following table sets forth the actual performance-based cash incentive bonuses earned by the Companys executive officers in fiscal 2016, which were calculated by the Committee and approved by the Board on January 26, 2017:
Name of Executive Officer and Title: |
Actual 2016 Cash
Incentive Bonus Earned 1 |
|||
William R. Wagner
|
$ | 424,743 | ||
Edward K. Herdiech
|
$ | 125,346 | ||
Lawrence M. DAngelo
|
$ | 307,026 | 2 | |
W. Sean Ford
|
$ | 155,739 | ||
Michael J. Donahue
|
$ | 113,265 | ||
Matthew P. Kaplan
|
$ | 105,714 |
1. | Amounts reported in this column represent performance-based cash incentive bonuses earned in fiscal 2016 and paid to executives under the Companys annual cash incentive bonus plan. |
2. | As the Companys SVP of Sales, Mr. DAngelos cash incentive bonus is commission-based and tied to the Companys achievement of certain Board-specified sales goals. |
Item 8.01. | Other Events. |
On February 1, 2017, the Company issued a press release announcing the consummation of the Transactions, a copy of which is attached hereto as Exhibit 99.1 and incorporated herein by reference.
Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits
Exhibit
|
Description of Exhibit |
|
2.1 | Employee Matters Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Citrix Systems, Inc. and GetGo, Inc.* | |
2.2 | Intellectual Property License Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Citrix Systems, Inc. and GetGo, Inc.* | |
2.3 | Transition Services Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Citrix Systems, Inc. and GetGo, Inc.* | |
10.1 | Cooperation Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Elliott Associates, L.P., Elliott International, L.P. and Elliot International Capital Advisors Inc. | |
10.2 | Amended and Restated Credit Agreement, dated as of February 1, 2017, by and among LogMeIn, Inc., each of the lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Chase Bank N.A., Wells Fargo Securities, LLC, and RBC Capital Markets, as Joint Bookrunners, Lead Arrangers, and Syndication Agents. | |
99.1 | Press release entitled LogMeIn Completes Merger with Citrixs GoTo Business, issued by the Company on February 1, 2017. |
* | Exhibits, annexes and schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K and will be supplementally provided to the Securities and Exchange Commission upon request. |
A list of the exhibits, annexes and schedules to the Employee Matters Agreement follows:
| Exhibit A: Additional Company-Specific Agreements |
A list of the exhibits, annexes and schedules to the Intellectual Property License Agreement follows:
| Schedule A: Certain Definitions |
| Schedule B: Citrix Licensed IP |
| Schedule C: SpinCo Licensed IP |
| Schedule D: SpinCo Codec |
A list of the exhibits, annexes and schedules to the Transition Services Agreement follows:
| Schedule I: Services To be Provided by Citrix to SpinCo |
| Schedule II: Services To be Provided by SpinCo to Citrix |
| Schedule 2.9: Subcontractors |
| Exhibit A: Citrix Group Members |
| Exhibit B: SpinCo Group Members |
Cautionary Language Concerning Forward-Looking Statements
Information set forth in this filing constitutes forward-looking statements concerning the Company, Citrix, GetGo, the Transactions and other matters, including statements with respect to the anticipated effects of the Merger. These forward-looking statements are based on the current expectations, beliefs and assumptions of the management of the Company, Citrix and GetGo, and there can be no assurance that future developments affecting the parties will be those that the parties anticipate.
Among the risks and uncertainties that could cause actual results to differ from those described in the forward-looking statements are the following: (1) the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated, (2) failure to realize the estimated synergies or growth from the proposed transactions or that such benefits may take longer to realize than expected, (3) risks related to unanticipated costs of integration of GetGo by the Company, (4) adverse trends in economic conditions generally or in the industries in which the Company and Citrix operate, (5) the Companys ability to compete effectively and successfully and to add new products and services, (6) the Companys ability to successfully manage and integrate acquisitions, (7) the ability to attract new customers and retain existing customers in the manner anticipated, (8) unanticipated changes relating to competitive factors in the parties industries, and (9) the business interruptions in connection with the Companys technology systems. Discussions of additional risks and uncertainties are contained in the Companys, Citrixs and GetGos filings with the SEC. None of the Company Citrix or GetGo is under any obligation, and each expressly disclaim any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this announcement are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
LOGMEIN, INC. | ||||||
Date: February 1, 2017 | By: |
/s/ Michael J. Donahue |
||||
Name: | Michael J. Donahue | |||||
Title: | Senior Vice President, General Counsel and Secretary |
LOGMEIN, INC.
Exhibit Index
Exhibit
|
Description of Exhibit |
|
2.1 | Employee Matters Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Citrix Systems, Inc. and GetGo, Inc.* | |
2.2 | Intellectual Property License Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Citrix Systems, Inc. and GetGo, Inc.* | |
2.3 | Transition Services Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Citrix Systems, Inc. and GetGo, Inc.* | |
10.1 | Cooperation Agreement, dated as of January 31, 2017, by and among LogMeIn, Inc., Elliott Associates, L.P., Elliott International, L.P. and Elliot International Capital Advisors Inc. | |
10.2 | Amended and Restated Credit Agreement, dated as of February 1, 2017, by and among LogMeIn, Inc., each of the lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Chase Bank N.A., Wells Fargo Securities, LLC, and RBC Capital Markets, as Joint Bookrunners, Lead Arrangers, and Syndication Agents. | |
99.1 | Press release entitled LogMeIn Completes Merger with Citrixs GoTo Business, issued by the Company on February 1, 2017. |
* | Exhibits, annexes and schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K and will be supplementally provided to the Securities and Exchange Commission upon request. |
A list of the exhibits, annexes and schedules to the Employee Matters Agreement follows:
| Exhibit A: Additional Company-Specific Agreements |
A list of the exhibits, annexes and schedules to the Intellectual Property License Agreement follows:
| Schedule A: Certain Definitions |
| Schedule B: Citrix Licensed IP |
| Schedule C: SpinCo Licensed IP |
| Schedule D: SpinCo Codec |
A list of the exhibits, annexes and schedules to the Transition Services Agreement follows:
| Schedule I: Services To be Provided by Citrix to SpinCo |
| Schedule II: Services To be Provided by SpinCo to Citrix |
| Schedule 2.9: Subcontractors |
| Exhibit A: Citrix Group Members |
| Exhibit B: SpinCo Group Members |
Exhibit 2.1
Execution Version
EMPLOYEE MATTERS AGREEMENT
by and among
CITRIX SYSTEMS, INC.,
GETGO, INC.
and
LOGMEIN, INC.
Dated as of January 31, 2017
TABLE OF CONTENTS
PAGE | ||||||
ARTICLE I | ||||||
DEFINITIONS | ||||||
Section 1.1 |
General | 1 | ||||
ARTICLE II | ||||||
TRANSFER OF SPINCO EMPLOYEES; GENERAL PRINCIPLES | ||||||
Section 2.1 |
Transfer of Employment to SpinCo of SpinCo Employees; SpinCo LTD Employees; Post-Effective Time Transfers; SpinCo Contractors | 3 | ||||
Section 2.2 |
Assumption and Retention of Liabilities | 5 | ||||
Section 2.3 |
SpinCo Participation in the Citrix Plans | 5 | ||||
Section 2.4 |
Sponsorship of the SpinCo Plans | 6 | ||||
Section 2.5 |
Coordination with Merger Agreement | 6 | ||||
Section 2.6 |
Reimbursements | 6 | ||||
Section 2.7 |
Labor Relations | 6 | ||||
ARTICLE III | ||||||
DEFINED CONTRIBUTION AND NON-QUALIFIED DEFERRED COMPENSATION PLANS | ||||||
Section 3.1 |
401(k) Plan | 6 | ||||
ARTICLE IV | ||||||
HEALTH AND WELFARE PLANS; PAYROLL; COBRA AND VACATION | ||||||
Section 4.1 |
Cessation of Participation in Citrix Health and Welfare Plans | 7 | ||||
Section 4.2 |
Allocation of Health and Welfare Plan Liabilities | 7 | ||||
Section 4.3 |
Flexible Spending Plan Treatment | 7 | ||||
Section 4.4 |
Workers Compensation Liabilities | 8 | ||||
Section 4.5 |
COBRA and HIPAA | 8 | ||||
Section 4.6 |
Vacation and Paid Time Off | 8 | ||||
Section 4.7 |
Payroll | 8 | ||||
ARTICLE V | ||||||
INCENTIVE COMPENSATION AND EQUITY COMPENSATION | ||||||
Section 5.1 |
Incentive Plans | 9 |
Section 5.2 |
Awards under the Citrix Equity-Based Plans | 9 | ||||
Section 5.3 |
Citrix ESPP | 9 | ||||
ARTICLE VI | ||||||
NON-U.S. EMPLOYEES | ||||||
Section 6.1 |
Special Provisions for Employees Outside of the United States | 9 | ||||
ARTICLE VII | ||||||
GENERAL AND ADMINISTRATIVE | ||||||
Section 7.1 |
Sharing of Participant Information | 10 | ||||
Section 7.2 |
No Third Party Beneficiaries | 10 | ||||
Section 7.3 |
Audit Rights with Respect to Information Provided | 10 | ||||
Section 7.4 |
Fiduciary Matters | 11 | ||||
Section 7.5 |
Consent of Third Parties | 11 | ||||
Section 7.6 |
Taxes | 11 | ||||
Section 7.7 |
Sponsored Employees | 11 | ||||
ARTICLE VIII | ||||||
DISPUTE RESOLUTION | ||||||
Section 8.1 |
General | 12 | ||||
ARTICLE IX | ||||||
MISCELLANEOUS | ||||||
Section 9.1 |
Complete Agreement; Construction | 12 | ||||
Section 9.2 |
Transaction Agreements | 12 | ||||
Section 9.3 |
Counterparts | 12 | ||||
Section 9.4 |
Survival of Agreements | 13 | ||||
Section 9.5 |
Expenses | 13 | ||||
Section 9.6 |
Notices | 13 | ||||
Section 9.7 |
Amendment and Waivers. | 14 | ||||
Section 9.8 |
Termination | 14 | ||||
Section 9.9 |
Assignment | 14 | ||||
Section 9.10 |
Successors and Assigns | 14 | ||||
Section 9.11 |
Payment Terms | 14 | ||||
Section 9.12 |
Subsidiaries | 15 | ||||
Section 9.13 |
Exhibits and Schedules | 15 | ||||
Section 9.14 |
Governing Law | 15 | ||||
Section 9.15 |
Waiver of Jury Trial | 16 | ||||
Section 9.16 |
Specific Performance | 16 |
Section 9.17 |
Severability | 16 | ||||
Section 9.18 |
Interpretation | 17 | ||||
Section 9.19 |
No Duplication; No Double Recovery | 17 | ||||
Section 9.20 |
No Admission of Liability | 17 |
EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT (this Agreement ), dated as of January 31, 2017, is entered into by and among CITRIX SYSTEMS, INC., a Delaware corporation ( Citrix ), GETGO, INC., a Delaware corporation and a wholly owned subsidiary of Citrix ( SpinCo ), and LOGMEIN, INC., a Delaware corporation ( LogMeIn ). Party or Parties means Citrix, SpinCo or LogMeIn, individually or collectively, as the case may be. Capitalized terms used and not defined herein shall have the meaning set forth in the Separation and Distribution Agreement between the Parties, dated as of July 26, 2016 (the Separation Agreement ).
WHEREAS, as contemplated by the Separation Agreement, Citrix, SpinCo and LogMeIn desire to enter into this Agreement to provide for the allocation of assets, Liabilities, and responsibilities with respect to certain matters relating to employees (including employee compensation and benefit plans and programs) between them.
NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 General. For purposes of this Agreement the following terms shall have the meaning ascribed to them in this Article I.
1.1 Citrix Defined Contribution Plan means the Citrix 401(k) Plan.
1.2 Citrix Employee means any individual who, as of the Distribution Effective Time, is either actively employed by, or then on a leave of absence from, Citrix or a Citrix Group member (including maternity, paternity, family, sick, short-term or long-term disability leave, qualified military service under the Uniformed Services Employment and Reemployment Rights Act of 1994, and leave under the Family Medical Leave Act and other approved leaves), but does not include any SpinCo Employee (other than the SpinCo LTD Employees).
1.3 Citrix Equity-Based Plans means the Citrix Amended and Restated 2005 Equity Incentive Plan and the Citrix 2014 Equity Incentive Plan.
1.4 Citrix ESPP means the Citrix 2015 Employee Stock Purchase Plan.
1.5 Citrix FSAs has the meaning set forth in Section 4.3 .
1.6 Citrix Health and Welfare Plans means the health and welfare plans, sponsored and maintained by Citrix or any Citrix Group member immediately prior to the Distribution Effective Time, which provide group health, life, dental, accidental death and dismemberment, health care reimbursements, dependent care assistance and disability benefits. The term Citrix Health and Welfare Plan does not include any SpinCo Plan.
1.7 Citrix Participant means any individual who is a Citrix Employee or a former Citrix Employee, and any beneficiary, dependent, or alternate payee of such individual, as the context requires.
1.8 Citrix Plan means any plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle (including a Citrix Health and Welfare Plan) for which the eligible classes of participants include employees or former employees of Citrix or a Citrix Group member (which may include employees of SpinCo Group members prior to the Distribution Effective Time). The term Citrix Plan does not include any SpinCo Plans.
1.9 COBRA means the continuation coverage requirements for group health plans under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in Code Section 4980B and ERISA Sections 601 through 608.
1.10 Code means the Internal Revenue Code of 1986, as amended, or any successor federal income tax law. Reference to a specific Code provision also includes any proposed, temporary, or final regulation in force under that provision.
1.11 ERISA means the Employee Retirement Income Security Act of 1974, as amended. Reference to a specific provision of ERISA also includes any proposed, temporary, or final regulation in force under that provision.
1.12 HIPAA means the health insurance portability and accountability requirements for group health plans under the Health Insurance Portability and Accountability Act of 1996, as amended.
1.13 LogMeIn 401(k) Plan means the tax-qualified 401(k) defined contribution savings plan to be established or designated by LogMeIn or a LogMeIn Subsidiary prior to the Distribution Effective Time.
1.14 LogMeIn Health and Welfare Plans means the health and welfare plans, sponsored and maintained by LogMeIn or a LogMeIn Subsidiary from time to time, which provide group health, life, dental, accidental death and dismemberment, health care reimbursements, dependent care assistance and disability benefits.
1.15 LogMeIn Plan means any plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle (including a LogMeIn Health and Welfare Plan) for which the eligible classes of participants include employees or former employees of LogMeIn (which may include employees of SpinCo Group members as of the day following the date of the Distribution Effective Time).
1.16 SpinCo Contractor has the meaning set forth in the Merger Agreement.
1.17 SpinCo Employee has the meaning set forth in the Merger Agreement.
1.18 SpinCo FSAs has the meaning set forth in Section 4.3 .
2
1.19 SpinCo LTD Employees means the SpinCo Employees who are receiving long term disability benefits under a Citrix Plan at the Distribution Effective Time or are on short term disability leave at the Distribution Effective Time.
1.20 SpinCo Participant means any individual who is a SpinCo Employee, and any beneficiary, dependent, or alternate payee of such individual, as the context requires.
1.21 SpinCo Plan means any benefit or compensation plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle for the benefit of individual service providers (i) that is sponsored or maintained by a Transferred Subsidiary or (ii) for which Liabilities transfer to SpinCo or any SpinCo Group member under applicable Law as a result of the transactions contemplated by the Transaction Agreements.
1.22 Sponsored Employee means a SpinCo Employee working on a visa or work permit sponsored by Citrix or a Citrix Group member as of immediately prior to the Distribution Effective Time.
ARTICLE II
TRANSFER OF SPINCO EMPLOYEES; GENERAL PRINCIPLES
Section 2.1 Transfer of Employment to SpinCo of SpinCo Employees; SpinCo LTD Employees; Post-Effective Time Transfers; SpinCo Contractors .
(a) Section 4.14(a) of the Citrix Disclosure Letter, as updated from time to time prior to the Distribution Effective Time in accordance with the Merger Agreement, identifies each individual who is a SpinCo Employee and, Citrix and SpinCo have caused the employment of each SpinCo Employee to be transferred, pursuant to the Internal Reorganization, to a SpinCo Group member in the applicable jurisdiction.
(b) Citrix shall, or shall cause a Citrix Group member to, employ or retain the employment of each SpinCo LTD Employee until such SpinCo LTD Employee returns to active work or ceases to have a right to reemployment under the applicable Citrix Health and Welfare Plan. SpinCo shall, or cause a SpinCo Group member to, offer (upon substantially comparable terms and conditions of employment) employment to each SpinCo LTD Employee when such SpinCo LTD Employee returns to work within the later of (i) the time period prescribed under applicable Law, (ii) the applicable leave policy governing such employee at the time the disability commenced or (iii) six (6) months, and shall hire each SpinCo LTD Employee who accepts such offer of employment and arrives to work for a SpinCo Group member. SpinCo or a SpinCo Group member, as the case may be, shall indemnify each Citrix Group member against any Liability with respect to a failure by SpinCo or a SpinCo Group member to (i) offer to hire such SpinCo LTD Employee or (ii) hire such SpinCo LTD Employee who accepts an offer of employment by SpinCo or a SpinCo Group member and arrives to work in accordance with this Section 2.1(b). To the extent that a SpinCo LTD Employee in the United States is on short-term disability leave as of the Distribution Effective
3
Time and subsequently becomes entitled to long-term disability benefits as a result of such disability (without having returned to work), such long-term disability benefits will be provided under the applicable Citrix Plan. Periodically following the Distribution Effective Time, Citrix shall calculate the cost of the compensation, benefits and other employment-related costs actually incurred by Citrix Group members in employing such SpinCo LTD Employees following the Distribution Effective Time (other than severance or other termination benefits and the costs of providing disability insurance coverage) and shall provide SpinCo with notice and reasonable documentation of such amount following SpinCos receipt of such notice, SpinCo shall reimburse such amount to Citrix. SpinCo LTD Employees shall be considered Citrix Employees unless and until either (a) their employment is terminated by the applicable Citrix Group member or (b) they return to active work and are hired by SpinCo or a SpinCo Group member pursuant to this Section 2.1(b).
(c) In the event that either Party reasonably determines following the Distribution Effective Time that any individual employed outside the United States who is not a SpinCo Employee has inadvertently become employed by a member of the SpinCo Group (due to the operation of transfer of undertakings or similar law or regulation), the Parties shall cooperate and take such actions as may be reasonably necessary in order to cause the employment of such individuals to be promptly transferred to a member of the Citrix Group, and Citrix shall reimburse the members of the SpinCo Group for all compensation, benefits and other employment-related costs incurred by SpinCo Group members in employing such individuals.
(d) To the extent contractual or legal severance or other termination benefit becomes payable as a result of the transfers of employment described in Sections 2.1(a) , (b) or (c) , Citrix shall be responsible for the payment of such severance or termination benefit. LogMeIn shall be responsible for the payment of any severance or termination benefit incurred as a result of other employment terminations, transfers or other actions with respect to SpinCo Employees which are not undertaken in connection with the Internal Reorganization but which are either (1) undertaken by Citrix at the request of LogMeIn or (2) occurring upon or following the Distribution Effective Time.
(e) With respect to any employment agreements with SpinCo Employees that are not with SpinCo or a SpinCo Group member or which do not transfer to a SpinCo Group member by operation of applicable Law, the Parties shall use reasonable best efforts to assign the applicable Contract to a member of the SpinCo Group in the applicable jurisdiction (or such other SpinCo Group member as is designated by LogMeIn) and SpinCo shall, or shall cause a member of the SpinCo Group to, assume and perform such employment agreements. Prior to the Distribution Effective Time, Citrix shall use reasonable best efforts to cause each SpinCo Employee to enter into a new confidentiality, assignment and restrictive covenant agreement comparable to their current such agreements but with respect to the SpinCo Business, the beneficiary of which shall be SpinCo or a SpinCo Group member. To the extent that any SpinCo Employee does not enter into such a new confidentiality, assignment and restrictive covenant agreement, Citrix shall cause all rights and benefits of Citrix and any Citrix Group member under any confidentiality, assignment and restrictive covenant agreement with such SpinCo Employee to be assigned to the SpinCo or a SpinCo Group member, but only to the extent such rights and benefits relate to the SpinCo Business.
(f) With respect to any independent contractor agreements with SpinCo Contractors that are not with SpinCo or a SpinCo Group member, the Parties shall use reasonable best efforts to assign the applicable Contract to a member of the SpinCo Group in the applicable jurisdiction (or such other SpinCo Group member as is designated by LogMeIn) and SpinCo shall,
4
or shall cause a member of the SpinCo Group to, assume and perform such independent contractor agreements. Prior to the Distribution Effective Time, Citrix shall cause all rights and benefits of Citrix and any Citrix Group member under any confidentiality, assignment and restrictive covenant agreement with a SpinCo Contractor to be assigned to SpinCo or a SpinCo Group member, but only to the extent such rights and benefits relate to the SpinCo Business. To the extent that any SpinCo Contractor is not party to any confidentiality, assignment and restrictive covenant agreement with Citrix or any Citrix Group member, Citrix shall use reasonable best efforts to cause each such SpinCo Contractor to enter into a confidentiality, assignment and restrictive covenant agreement, the beneficiary of which shall be SpinCo or a SpinCo Group member.
(g) LogMeIn, SpinCo Group and SpinCo shall, or shall cause a member of the SpinCo Group to, provide each SpinCo Employee who incurs a termination of employment during the twelve (12) month period following the Distribution Effective Time with severance payments and severance benefits that are the same as the severance payments and severance benefits provided to similarly situated employees of LogMeIn under the LogMeIn Plans.
Section 2.2 Assumption and Retention of Liabilities. Citrix and SpinCo agree that (A) employment-related Liabilities not otherwise allocated herein and associated with (1) Citrix Participants and (2) SpinCo Participants (to the extent incurred prior to or on the date of the Distribution Effective Time and not incurred under a SpinCo Plan) are to be retained or assumed by Citrix or a Citrix Group member and (B) employment-related Liabilities not otherwise allocated herein and that are (1) associated with SpinCo Participants and incurred following the date of the Distribution Effective Time or (2) are incurred under a SpinCo Plan (for the avoidance of doubt, excluding any such Liabilities associated with individuals who are not current SpinCo Employees or SpinCo LTD Employees as of Distribution Effective Time) are to be assumed by SpinCo or a SpinCo Group member, in each case, except as specifically set forth herein. For purposes of this Agreement, the following claims and liabilities shall be deemed to be incurred as follows: (x) medical, vision, dental and/or prescription drug benefits (excluding hospital expenses), upon provision of the services, materials or supplies comprising any such benefits, (y) hospital expenses upon the date of admission and (z) short-term and long-term disability, life, accidental death and dismemberment and business travel accident insurance benefits, upon the death, illness, injury or accident giving rise to such benefits.
Section 2.3 SpinCo Participation in the Citrix Plans; Citrix Participation in SpinCo Plans . Effective as of the day following the Distribution Effective Time, SpinCo and each SpinCo Group member shall cease to be participating companies in each Citrix Plan, and Citrix and SpinCo shall take all necessary action before the Distribution Effective Time to effectuate such cessation as a participating company. To the extent the terms of a Citrix Plan (or the terms of any service provider with respect to a Citrix Plan) provide for continued coverage for a period of time following the Distribution Effective Time, such continued coverage shall not violate this Section 2.3. Effective as of the Distribution Effective Time, Citrix shall cause all employees and other individual services providers of Citrix who are not SpinCo Employees to cease participating in, and to have no further rights under, the SpinCo Plans. In the event of any conflict between the provisions of this Section 2.3 and those of the Separation Agreement or any other Transaction Agreement, the provisions of this Section 2.3 shall govern.
5
Section 2.4 Sponsorship of the SpinCo Plans; Transfer of SpinCo Plan Assets . As of the Distribution Effective Time, Citrix and SpinCo shall have taken such actions (if any) as are required to cause (a) LogMeIn, SpinCo or a SpinCo Group member to assume sole sponsorship of, and all Liabilities with respect to, each SpinCo Plan and (b) all assets of any SpinCo Plan to be transferred to LogMeIn or a SpinCo Group member in the applicable jurisdiction.
Section 2.5 Coordination with Merger Agreement . The provisions of this Agreement shall not be deemed to modify the obligations of the Parties set forth in the Merger Agreement with respect to labor, employment, compensation, and related matters, including, without limitation, those set forth in Section 3.04 and Section 7.14 thereof.
Section 2.6 Reimbursements . From time to time after the Distribution Effective Time, the Parties shall promptly reimburse one another, upon reasonable request of the Party requesting reimbursement and the presentation by such Party of such substantiating documentation as the other Party shall reasonably request, for the cost of any Liabilities satisfied or assumed by the Party requesting reimbursement or its Affiliates that are made, pursuant to this Agreement, the responsibility of the other Party or any of its Affiliates.
Section 2.7 Labor Relations . To the extent required by applicable Law or any agreement with a labor union, works council, or similar employee organization representing any SpinCo Employee, the Parties shall cooperate to provide notice, engage in consultation, and take any similar action which may be required on its part in connection with the Distribution. Notwithstanding the foregoing, Citrix shall, and shall cause any Citrix Group member to, comply in all material respects with all applicable Laws and the terms of any agreement with a labor union, works council or similar employee organization representing any SpinCo Employee, including all notification and/or consultation requirements, necessary in connection with the Distribution with respect to SpinCo Employees in accordance with applicable Law.
ARTICLE III
DEFINED CONTRIBUTION AND NON-QUALIFIED DEFERRED COMPENSATION PLANS
Section 3.1 401(k) Plan . Citrix shall cause each SpinCo Employee to become fully vested as of the Distribution Effective Time in the SpinCo Employees account under the Citrix Defined Contribution Plan, including with respect to any employer contributions to such plan for the period occurring prior to the Distribution Effective Time (which such contributions Citrix shall cause to be made as soon as reasonably practicable following the Distribution Effective Time). Citrix shall (i) cause the Citrix Defined Contribution Plan to permit, if elected by a SpinCo Employee, the rollover of such SpinCo Employees account balance (including loans), to the LogMeIn 401(k) Plan, to extent permitted by law, and (ii) to the extent any SpinCo Employee has a loan outstanding as of the Distribution Effective Time under the Citrix Defined Contribution Plan, cause such loan to remain outstanding (and not go into default) until the first to occur of the end of the first full calendar quarter following the Distribution Effective Time or the earlier rollover of the SpinCo Employees account balance and loan note to the LogMeIn 401(k) Plan.
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ARTICLE IV
HEALTH AND WELFARE PLANS; PAYROLL; COBRA AND VACATION
Section 4.1 Cessation of Participation in Citrix Health and Welfare Plans . As of the day following the date of the Distribution Effective Time, SpinCo Employees shall cease to participate in the Citrix Health and Welfare Plans (subject to the last sentence of Section 2.3 ). LogMeIn shall cause SpinCo Participants who participate in Citrix Health and Welfare Plans immediately before the Distribution Effective Time to be automatically enrolled or offered participation, as of the Distribution Effective Time, in LogMeIn Health and Welfare Plans corresponding to the Citrix Health and Welfare Plans in which the SpinCo Participants participated immediately before the Distribution Effective Time or in which similarly situated employees of LogMeIn participate; provided , that for SpinCo Employees employed primarily in (or, in the case of any expatriate SpinCo Employee, whose home country is) the United States, or as may be required under applicable Law for SpinCo Employees employed primarily outside of the United States, such LogMeIn Health and Welfare Plans shall be substantially similar to the Citrix Health and Welfare Plans in which such SpinCo Participants participated immediately prior to the Distribution Effective Time.
Section 4.2 Allocation of Health and Welfare Plan Liabilities . All outstanding Liabilities relating to, arising out of, or resulting from health and welfare coverage or claims incurred by or on behalf of SpinCo Participants under the Citrix Health and Welfare Plans on or before date of the Distribution Effective Time shall be retained by Citrix.
Section 4.3 Flexible Spending Plan Treatment . Prior to the Distribution Effective Time, LogMeIn shall establish or designate a dependent care spending account and a medical care spending account (the LogMeIn FSAs ). The Parties shall take all steps reasonably necessary or appropriate so that the account balances (positive or negative) under the Citrix FSAs of each SpinCo Employee who has elected to participate therein in the year in which the Distribution Effective Time occurs shall be transferred on, or as soon as practicable after, the Distribution Effective Time from the Citrix FSAs to the corresponding LogMeIn FSAs. The LogMeIn FSAs shall assume responsibility as of the Distribution Effective Time for all outstanding dependent care and medical care claims under the Citrix FSAs of each SpinCo Employee for the year in which the Distribution Effective Time occurs and shall assume the rights of and agree to perform the obligations of the analogous Citrix FSA from and after the day following the date of the Distribution Effective Time. The Parties shall cooperate to provide that the contribution elections of each such SpinCo Employee as in effect immediately before the Distribution Effective Time remain in effect under the LogMeIn FSAs following the Distribution Effective Time. As soon as practicable after the Distribution Effective Time, Citrix shall transfer to SpinCo an amount equal to the total contributions made to the Citrix FSAs by SpinCo Employees in respect of the plan year in which the Distribution Effective Time occurs, reduced by an amount equal to the total claims already paid to SpinCo in respect of such plan year. From and after the Distribution Effective Time, Citrix shall (subject to applicable Law) provide SpinCo with such information such entity may reasonably request to enable it to verify any claims information pertaining to a Citrix FSA.
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Section 4.4 Workers Compensation Liabilities . All workers compensation Liabilities relating to, arising out of, or resulting from any claim by SpinCo Employees that result from an accident or from an occupational disease which is incurred before or on the date of the Distribution Effective Time shall be retained by Citrix. SpinCo and each SpinCo Group member shall be solely responsible for all workers compensation Liabilities relating to, arising out of, or resulting from any claim by a SpinCo Employee that results from an accident or from an occupational disease which is incurred after the date of the Distribution Effective Time. A claim for workers compensation benefits shall be deemed to be incurred when the event giving rise to the claim (the Workers Compensation Event ) occurs. If the Workers Compensation Event occurs over a period both preceding and following the date of the Distribution Effective Time, the claim shall be, to the extent not covered by insurance, the joint responsibility of LogMeIn and Citrix (allocated as appropriate between LogMeIn and Citrix based upon the relative periods of time that the Workers Compensation Event transpired preceding and following the Distribution Effective Time). The Parties shall cooperate with respect to any notification to appropriate governmental agencies of the disposition and the issuance of new, or the transfer of existing, workers compensation insurance policies and contracts governing the handling of claims.
Section 4.5 COBRA and HIPAA . Citrix or the applicable Citrix Group member shall remain responsible for all Liabilities incurred pursuant to COBRA and for administering compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the Citrix Health and Welfare Plans with respect to COBRA qualifying events occurring on or before the date of the Distribution Effective Time. SpinCo, LogMeIn or an applicable Affiliate shall be responsible for all Liabilities incurred pursuant to COBRA and for administering compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the SpinCo Health and Welfare Plans with respect to SpinCo Participants who incur a COBRA qualifying event at any time after the date of the Distribution Effective Time.
Section 4.6 Vacation and Paid Time Off . As of the Distribution Effective Time, the applicable SpinCo Group member shall credit each SpinCo Employee with the unused vacation days and personal and sickness days that such individual has accrued immediately prior to the Distribution Effective Time, to the extent included as a SpinCo Current Liability in SpinCo Working Capital (as such terms are defined in the Merger Agreement), in accordance with the vacation and personnel policies applicable to such employee immediately prior to the Distribution Effective Time (unless such vacation and paid time off is required under applicable Law to be paid out to the SpinCo Employee in connection with the Distribution and the transactions contemplated hereby, in which case such payment shall be made by Citrix as of or prior to the Distribution Effective Time).
Section 4.7 Payroll . On the applicable Citrix Group members first ordinary payroll date occurring on or after the Distribution Effective Time, Citrix shall cause to be paid to all SpinCo Employees all unpaid wages and other compensation earned or accrued through the Distribution Effective Time, including the amounts required to be paid under Sections 5.1 through 5.3 .
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ARTICLE V
INCENTIVE COMPENSATION AND EQUITY COMPENSATION
Section 5.1 Incentive Plans . At the Distribution Effective Time, the participation by each SpinCo Employee in any cash bonus plan of Citrix or a Citrix Group Member shall end, and Citrix shall pay to each such SpinCo Employee a prorated cash bonus under any cash bonus plan of Citrix or a Citrix Group Member, as determined in good faith by Citrix in a manner consistent with past practices and based on the target level of performance (without regard to any requirement for continued employment following the Distribution Effective Time). The participation by any SpinCo Employee in a sales plan of Citrix or a Citrix Group Member shall end as of the Distribution Effective Time, and Citrix shall pay to each such SpinCo Employee the applicable commission under such sales plan for any transactions that have closed prior to the Distribution Effective Time, provided and only to the extent that such SpinCo Employee would have been entitled to receive such commission pursuant to the terms of such sales plan if the Distribution Effective Time had not occurred.
Section 5.2 Awards under the Citrix Equity-Based Plans . Awards outstanding under the Citrix Equity-Based Plans and held by SpinCo Employees as of the Distribution Effective Time shall be treated in the manner set forth in Section 3.04 of the Merger Agreement.
Section 5.3 Citrix ESPP . As of the Distribution Effective Time, the participation of SpinCo Employees in the Citrix ESPP shall terminate and the SpinCo Employees shall receive a lump sum payment from Citrix in respect of their payroll deductions not previously used to purchase Citrix Common Stock in accordance with the terms of the Citrix ESPP.
ARTICLE VI
NON-U.S. EMPLOYEES
Section 6.1 Special Provisions for Employees Outside of the United States . The Appendices to this Agreement set forth the additional and/or different agreements of the Parties with respect to compensation, benefits, employees, and related matters outside of the United States. From and after the date hereof, the Parties agree to reasonably cooperate to effect the provisions of this Agreement with respect to employees and employee-related matters outside of the United States. Prior to the Distribution Effective Time, Citrix shall complete such schedules in good faith, and otherwise consistent with the principles of this Agreement subject to the approval of LogMeIn, which approval shall not be unreasonably withheld. To the extent required by applicable Law, SpinCo, a member of the SpinCo Group or LogMeIn, as appropriate, shall become a party to the applicable collective bargaining, works council, or similar arrangements with respect to SpinCo Employees outside the United States and shall comply with obligations thereunder from and after the Distribution Effective Time.
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ARTICLE VII
GENERAL AND ADMINISTRATIVE
Section 7.1 Sharing of Participant Information . To the maximum extent permitted under applicable Law, Citrix and SpinCo shall share, and shall cause each member of its respective Group to reasonably cooperate with the other Party hereto to (i) share, with each other and their respective agents and vendors all participant information reasonably necessary for the efficient and accurate administration of each of the Citrix Plans and the SpinCo Plans, (ii) facilitate the transactions and activities contemplated by this Agreement and (iii) resolve any and all employment-related claims regarding SpinCo Employees. SpinCo and its respective authorized agents shall, subject to applicable laws on confidentiality, be given reasonable and timely access to, and may make copies of, all information relating to the subjects of this Agreement in the custody of the Citrix Group, to the extent reasonably necessary for such administration. Citrix Group members shall be entitled to retain copies of all SpinCo Records relating to the subjects of this Agreement in the custody of the Citrix Group, subject to the terms of the Separation Agreement and applicable Law.
Section 7.2 No Third Party Beneficiaries . No provision of this Agreement or the Separation Agreement shall be construed to create any right, or accelerate entitlement, to any compensation or benefit whatsoever on the part of any future, present, or former employee of Citrix, a Citrix Group member, SpinCo, or a SpinCo Group member under this Agreement, the Separation Agreement, any Citrix Plan or SpinCo Plan or otherwise. Except as expressly provided in this Agreement, nothing in this Agreement shall preclude SpinCo or any SpinCo Group member, at any time after the Distribution Effective Time, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any SpinCo Plan, any benefit under any SpinCo Plan or any trust, insurance policy, or funding vehicle related to any SpinCo Plan (in each case in accordance with the terms of the applicable arrangement); except as expressly provided in this Agreement, nothing in this Agreement shall preclude Citrix or any Citrix Group member, at any time after the Distribution Effective Time, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any Citrix Plan, any benefit under any Citrix Plan or any trust, insurance policy, or funding vehicle related to any Citrix Plan (in each case in accordance with the terms of the applicable arrangement); and except as expressly provided in this Agreement, nothing in this Agreement shall preclude LogMeIn from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any LogMeIn Plan, any benefit under any LogMeIn Plan or any trust, insurance policy, or funding vehicle related to any LogMeIn Plan (in each case in accordance with the terms of the applicable arrangement).
Section 7.3 Audit Rights with Respect to Information Provided . Each of Citrix and SpinCo, and their duly authorized representatives, shall have the right to conduct reasonable audits with respect to all information provided to it by the other Party pursuant to this Agreement. The Parties shall cooperate to determine the procedures and guidelines for conducting audits under this Section 7.3 , which shall require reasonable advance notice by the auditing Party. The auditing Party shall have the right to make copies of any records at its expense, subject to applicable Law.
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Section 7.4 Fiduciary Matters . Citrix and SpinCo each acknowledge that actions required to be taken pursuant to this Agreement may be subject to fiduciary duties or standards of conduct under ERISA or other applicable Law, and no Party shall be deemed to be in violation of this Agreement if it fails to comply with any provisions hereof based upon its good faith determination (as supported by advice from counsel experienced in such matters) that to do so would violate such a fiduciary duty or standard. Each Party shall be responsible for taking such actions as are deemed necessary and appropriate to comply with its own fiduciary responsibilities and shall fully release and indemnify the other Party for any Liabilities caused by the failure to satisfy any such responsibility.
Section 7.5 Consent of Third Parties . If any provision of this Agreement is dependent on the consent of any third party (such as a vendor or Governmental Authority), Citrix and SpinCo shall use commercially reasonable efforts to obtain such consent, and if such consent is not obtained, to implement the applicable provisions of this Agreement to the full extent practicable. If any provision of this Agreement cannot be implemented due to the failure of such third party to consent, Citrix and SpinCo shall negotiate in good faith to implement the provision in a mutually satisfactory manner. The phrase commercially reasonable efforts as used herein shall not be construed to require the incurrence of any non-routine or unreasonable expense or liability or the waiver of any right.
Section 7.6 Taxes . Citrix shall cause to be timely withheld and remitted to the applicable Governmental Authority all Taxes (including employer payroll Taxes) required to be withheld or remitted in respect of any compensation paid by any Citrix Group member to a SpinCo Employee on or after the date of the Distribution Effective Time ( Citrix Post-Closing Compensation ). Citrix shall reimburse SpinCo (or its designee) for any Taxes any SpinCo Group member is required to pay or withhold with respect to any Citrix Post-Closing Compensation, following receipt by Citrix of SpinCos request for such payment and evidence reasonably satisfactory to Citrix of the payment of such Taxes by a SpinCo Group Member. In the event of any conflict between the provisions of this Section 7.6 and those of the Tax Matters Agreement, the provisions of this Section 7.6 shall govern.
Section 7.7 Sponsored Employees . The Parties shall, and shall cause their respective members, to cooperate in good faith with each other and the applicable Governmental Authorities with respect to the process of obtaining work authorization for each Sponsored Employee to work with SpinCo or a SpinCo Group member, including but not limited to, petitioning the applicable Governmental Authorities for the transfer of each Sponsored Employees (as well as any spouse or dependent thereof, as applicable) visa or work permit, or the grant of a new visa or work permit, to SpinCo or any SpinCo Group member. Citrix agrees to promptly pay all costs and expenses related to the obtainment of work authorization of such Sponsored Employee (as well as any spouse or dependent thereof, as applicable) that are incurred in connection with the Internal Reorganization. LogMeIn agrees to promptly pay such costs and expenses that are otherwise incurred in connection with the Separation, Distribution or Merger. In the event that it is not legally permissible for a Sponsored Employee to continue work with SpinCo, or a SpinCo Group member, as applicable, following the Distribution Effective Time, such Sponsored Employee shall be treated as a SpinCo LTD Employee hereunder and the parties shall reasonably cooperate to provide for the services of such Sponsored Employee to be made available exclusively to the SpinCo Group under an employee secondment or similar arrangement under which a SpinCo
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Group member shall be responsible for the actual costs incurred by the Citrix Group for such individuals compensation and benefits during the period of such secondment or similar arrangement (except to the extent such costs are otherwise allocated to a Citrix Group member hereunder) until the applicable visa or work permit is obtained (for the avoidance of doubt, and pursuant Section 2.1(b) such period shall not last longer than six (6) months); provided , however , that the Parties shall continue to use their commercially reasonable efforts to obtain the applicable visa or work permit.
ARTICLE VIII
DISPUTE RESOLUTION
Section 8.1 General . The provisions of Article VII of the Separation Agreement shall apply, mutatis mutandis, to all disputes, controversies, or claims (whether arising in contract, tort, or otherwise) that may arise out of or relate to, or arise under or in connection with, this Agreement or the transactions contemplated hereby.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Complete Agreement; Construction . This Agreement, together with the Separation Agreement and the other Transaction Agreements, constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. If there is a conflict between any provision of this Agreement and a provision in any of the other Transaction Agreements (other than Section 3.04 and Section 7.14 of the Merger Agreement), the provision of this Agreement shall control unless (i) with respect to any Ancillary Agreement other than the Tax Matters Agreement, as specifically provided otherwise in this Agreement or in such other Ancillary Agreement, or (ii) with respect to the Tax Matters Agreement, the provision relates to matters addressed by the Tax Matters Agreement, in which case the Tax Matters Agreement shall control except to the extent expressly provided in Section 7.6 . If there is a conflict between any provision of this Agreement and a provision in Sections 3.04 or 7.14 of the Merger Agreement, the provision of the Merger Agreement shall control. Neither this Agreement nor any Ancillary Agreement shall govern Tax matters (including any administrative, procedural, and related matters thereto, Tax Matters ), except to the extent expressly provided herein (in Section 7.6 ) or therein.
Section 9.2 Transaction Agreements . Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Merger Agreement or the Ancillary Agreements.
Section 9.3 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in pdf form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
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Section 9.4 Survival of Agreements . Except as otherwise contemplated by this Agreement or any Transaction Agreement, all covenants and agreements of the Parties contained in this Agreement and each Transaction Agreement shall survive the Distribution Effective Time and remain in full force and effect in accordance with their applicable terms.
Section 9.5 Expenses . Except as otherwise provided in this Agreement, the Separation Agreement, or any other Transaction Agreement, each party hereto shall be responsible for the fees and expenses of the Parties as provided in Section 9.03 of the Merger Agreement.
Section 9.6 Notices . All notices, requests, claims, demands, and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by facsimile or email (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 9.6 ):
If to Citrix, or to SpinCo prior to the Distribution Effective Time:
CITRIX SYSTEMS, INC.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile: (954) 267-3101
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street, 23rd Floor
Boston, MA 02116
Facsimile: (617) 573-4822
Attention: Margaret A. Brown
If to LogMeIn, or to SpinCo after the Distribution Effective Time:
LOGMEIN, INC.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attention: Chief Financial Officer
General Counsel
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with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attention: John H. Chory
Bradley C. Faris
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
Section 9.7 Amendment and Waivers .
(a) This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 9.7(b) .
(b) Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Parties; (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other Parties pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Parties or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
Section 9.8 Termination . This Agreement shall terminate without further action at any time before the Distribution Effective Time upon termination of the Merger Agreement. If terminated, no party hereto shall have any Liability of any kind to the other parties or any other Person on account of this Agreement, except as provided in the Merger Agreement.
Section 9.9 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this Section 9.9 shall be null and void.
Section 9.10 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of, and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
Section 9.11 Payment Terms .
(a) Except as otherwise expressly provided to the contrary in this Agreement or in any Transaction Agreement, any amount to be paid or reimbursed by a Party (where applicable, or a member of such Partys Group) to the other Party (where applicable, or a member of such other Partys Group) under this Agreement shall be paid or reimbursed hereunder within sixty (60)
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days after presentation of an invoice or a written demand therefor, in either case setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.
(b) Except as set forth in Article V of the Separation Agreement or as expressly provided to the contrary in this Agreement or in any Transaction Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within sixty (60) days of such bill, invoice, or other demand) shall bear interest at a rate per annum equal to the Prime Rate, from time to time in effect, plus two percent (2%), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.
(c) Without the consent of the party receiving any payment under this Agreement specifying otherwise, all payments to be made by either Citrix or SpinCo under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate published on Bloomberg at 5:00 pm, Eastern time, on the day before the relevant date, or in The Wall Street Journal , Eastern Edition, on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any Indemnity Payment required to be made hereunder or under any Transaction Agreement may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date in which notice of the claim is given to the Indemnifying Party.
Section 9.12 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any Person that becomes a Subsidiary of such Party at or after the Distribution Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party.
Section 9.13 Exhibits and Schedules . The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. Subject to the prior written consent of the other Parties, each Party shall be entitled to update the Schedules from and after the date hereof until the Distribution Effective Time.
Section 9.14 Governing Law . This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided , however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with Section 9.6 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with
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respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
Section 9.15 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.15 .
Section 9.16 Specific Performance . The Parties acknowledge and agree that the Parties would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by monetary damages alone and that the Parties would not have any adequate remedy at law. Accordingly, in addition to any other right or remedy to which any Party may be entitled, at law or in equity (including monetary damages), such Party shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary, and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. For the avoidance of doubt, LogMeIn shall, during the term of this Agreement, have the right to enforce specifically the obligations of Citrix and SpinCo set forth herein. The Parties agree that they will not contest the appropriateness of specific performance as a remedy.
Section 9.17 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
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Section 9.18 Interpretation . The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
Section 9.19 No Duplication; No Double Recovery . Nothing in this Agreement or any Transaction Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation, or recovery with respect to any matter arising out of the same facts and circumstances.
Section 9.20 No Admission of Liability . The allocation of Assets and Liabilities herein (including on the Schedules hereto) is solely for the purpose of allocating such Assets and Liabilities between Citrix and SpinCo and is not intended as an admission of liability or responsibility for any alleged Liabilities vis-à-vis any Third Party, including with respect to the Liabilities of any non-wholly owned subsidiary of Citrix or SpinCo.
[ Signature Page Follows ]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.
CITRIX SYSTEMS, INC. | ||
By: |
/s/ David J. Henshall |
|
Name: |
David J. Henshall | |
Title: |
Executive Vice President, Chief Operating Officer and Chief Financial Officer | |
GETGO, INC. | ||
By: |
/s/ Antonio G. Gomes |
|
Name: |
Antonio G. Gomes | |
Title: |
Secretary | |
LOGMEIN, INC. | ||
By: |
/s/ William R. Wagner |
|
Name: |
William R. Wagner | |
Title: |
President and Chief Executive Officer |
Signature Page to Employee Matters Agreement
Exhibit 2.2
CONFIDENTIAL
EXECUTION COPY
INTELLECTUAL PROPERTY LICENSE AGREEMENT
by and among
CITRIX SYSTEMS, INC.,
GETGO, INC.
and
LOGMEIN, INC.
Dated as of January 31, 2017
INTELLECTUAL PROPERTY LICENSE AGREEMENT
This INTELLECTUAL PROPERTY LICENSE AGREEMENT (this Agreement ), dated as of January 31, 2017, is entered into by and among CITRIX SYSTEMS, INC., a Delaware Corporation ( Citrix ), GETGO, INC. ( SpinCo ), a Delaware Corporation, and LOGMEIN, INC., a Delaware corporation ( LogMeIn ). Party or Parties means Citrix, SpinCo or LogMeIn, individually or collectively, as the case may be.
W I T N E S S E T H:
WHEREAS, the Board of Directors of Citrix has determined that it is appropriate, desirable and in the best interests of Citrix and its stockholders to separate the SpinCo Business from the remaining business of Citrix and its Subsidiaries;
WHEREAS, in furtherance of the Separation, Citrix, SpinCo and LogMeIn have entered into a Separation and Distribution Agreement, dated as of July 26, 2016 (the Separation Agreement ), that, together with this Agreement and certain other ancillary agreements, govern the terms and conditions of the Separation;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of July 26, 2016 (the Merger Agreement ), among Citrix, SpinCo, LogMeIn and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of LogMeIn ( Merger Sub ), immediately following the Distribution under the Separation Agreement, Merger Sub will merge with and into SpinCo and, in connection with the Merger, SpinCo Common Stock will be converted into shares of common stock of LogMeIn, par value $0.01 per share, on the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, as of the Effective Time, Citrix owns certain Intellectual Property that is used in the SpinCo Business, and Citrix wishes to grant to SpinCo a license to such Intellectual Property to continue using the same in the SpinCo Business and to the Citrix Licensed IP, on the terms and conditions hereof; and
WHEREAS, as of the Effective Time, SpinCo wishes to grant to Citrix a license to the SpinCo Licensed IP, including Patents included in the Transferred IP, in each case in accordance with and subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions .
(a) Certain capitalized terms used herein shall have the meanings set forth in Schedule A hereto.
C-1
CONFIDENTIAL
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(b) Unless otherwise defined herein, all capitalized terms used herein shall have the same meanings as in the Merger Agreement or Separation Agreement (as applicable).
Section 1.2 References; Interpretation . In this Agreement, except to the extent otherwise provided or that the context otherwise requires: (a) when a reference is made in this Agreement to Article, Section, Exhibit and Schedule such reference is to an Article and Section of, and Exhibit and Schedule to, this Agreement; (b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; (c) whenever the words include, includes or including are used in this Agreement, they are deemed to be followed by the words without limitation; (d) the words hereof, herein and hereunder and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document delivered or made available pursuant hereto, unless otherwise defined therein; (f) references to day or days are to calendar days; (g) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms; (h) references to a Person are also to its successors and permitted assigns; (i) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day; (j) references to sums of money are expressed in lawful currency of the United States of America, and $ refers to U.S. dollars; (k) references to any statute or regulation are to such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute) and to any section of any statute or regulation include any successor to such section; (l) the word or shall not be exclusive; (m) reference in this Agreement to any time shall be to Eastern time unless otherwise expressly provided herein; and (n) references in this Agreement to Citrix shall also be deemed to refer to the applicable member of the Citrix Group, references to SpinCo shall also be deemed to refer to the applicable member of the SpinCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Citrix or SpinCo shall be deemed to require Citrix or SpinCo, as the case may be, to cause the applicable members of the Citrix Group or the SpinCo Group, respectively, to take, or refrain from taking, any such action.
ARTICLE II
INTELLECTUAL PROPERTY LICENSES
Section 2.1 License to SpinCo of Citrix Licensed IP .
(a) S hareConnect . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, Citrix hereby grants, on behalf of itself and its Subsidiaries, to SpinCo and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-
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free and fully paid-up, non-exclusive license in, to and under ShareConnect, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule B hereto, in each case as and to the extent owned by any member of the Citrix Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by Citrix or its Affiliates to ShareConnect to the extent owned by Citrix or any of its Affiliates, in each case solely to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with GoToMyPC, as GoToMyPC exists as of the Effective Time and including extensions, upgrades and evolutions thereof.
(b) Recapit . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, Citrix hereby grants, on behalf of itself and its Subsidiaries, to SpinCo and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under Recapit, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule B hereto, in each case as and to the extent owned by any member of the Citrix Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by Citrix or its Affiliates to Recapit to the extent owned by Citrix or any of its Affiliates, in each case solely to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products and services of SpinCo as they exist as of the Effective Time and including extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
(c) P atents and Other Intellectual Property .
(i) Patent L icense . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, Citrix hereby grants on behalf of itself and its Subsidiaries, to SpinCo and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under any and all, (A) Patents owned by any member of the Citrix Group as of the Effective Time having one or more Necessary Claims that would be infringed by the products and services of the SpinCo Business as of the Effective Time, (B) Patents that cover any Improvements made by Citrix or its Affiliates to the SpinCo Licensed IP, in each case to the extent owned by Citrix or any of its Affiliates, and (C) patents issuing from, and national or international counterparts to, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions of, any of the Patents described in the foregoing clauses (A) or (B), in each case solely in connection with the products or services of SpinCo and its Subsidiaries and extensions, upgrades and evolutions thereof and solely to the extent that the foregoing would infringe a Necessary Claim, and including the
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rights to use, develop, make, have made, sell, have sold, offer for sale and import any such products or services. As used in this Agreement, Necessary Claims of a Patent licensed under this Agreement means any one or more Valid Claims of such Patent which, in the absence of such license, would be infringed by the activities permitted under such license.
(ii) License to Omitted Intellectual Property . Without limiting the foregoing clause (i), subject to the terms and conditions of this Agreement, effective as of the Effective Time, solely with respect to any (A) Intellectual Property (other than Marks) owned by any member of the Citrix Group as of the Effective Time which was required to be assigned and transferred to SpinCo and its Subsidiaries but, which in violation thereof, was not so assigned and transferred, or (B) Intellectual Property (other than Marks) which was used in the SpinCo Business as of the Effective Time and not licensed to SpinCo and its Subsidiaries pursuant to this Agreement or otherwise provided to them pursuant to any other Ancillary Agreement, effective automatically and immediately prior to the earlier of such time as (1) either Citrix or SpinCo becomes aware of and notifies the other Party in writing of such Intellectual Property, or (2) any such Intellectual Property is assigned or transferred to any Person that is not a member of the Citrix Group, or upon any change of control or other one or more events or transactions by which any member of the Citrix Group that owns such Intellectual Property ceases to become a member of the Citrix Group, or otherwise upon such time as any such Intellectual Property, including the right to assert any claim of infringement or other violation thereof, ceases to be exclusively owned and controlled by any member of the Citrix Group, and unless such Intellectual Property is both described under clause (A) above and clause (1) above applies, in which case SpinCos rights to such Intellectual Property are governed by the Separation Agreement, on an item of such Intellectual Property-by-item of such Intellectual Property basis, Citrix hereby grants on behalf of itself and its Subsidiaries, to SpinCo and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under such Intellectual Property in connection with the SpinCo Business, including the products and services of the SpinCo Business as of the Effective Time together with extensions, upgrades and evolutions thereof, including the rights to make, have made, use, sell, have sold, offer for sale, and import any such products or services, and reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit such Intellectual Property in connection with the foregoing. Citrix and SpinCo shall each use commercially reasonable efforts to provide the other with written notice following its discovery of any such omitted Intellectual Property licensed under this clause (ii).
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(d) Definition of Citrix Licensed IP . As used herein:
(i) Citrix Licensed IP means, collectively, (A) ShareConnect, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule B hereto, (B) Recapit, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule B hereto (C) the Citrix Licensed Patents; and (D any and all other Intellectual Property licensed to SpinCo pursuant to Section 2.1(c).
(ii) Citrix Licensed Patents means the Patents that are licensed to SpinCo pursuant to Section 2.1(a) or Section 2.1(b) or Section 2.1(c) above, including as set forth in Schedule B hereto.
(iii) ShareConnect means the Software known as ShareConnect as of the Effective Time, in object code and source code.
(iv) Recapit means the Software known as Recapit as of the Effective Time, in object code and source code.
Section 2.2 License to Citrix of SpinCo Licensed IP .
(a) GoToMyPC . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under GoToMyPC, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to GoToMyPC to the extent owned by SpinCo or any of its Affiliates, in each case solely to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with ShareConnect, as ShareConnect exists as of the Effective Time and including extensions, upgrades and evolutions thereof. Citrix hereby agrees that, for three (3) years following the Effective Time, Citrix and its Subsidiaries shall not sell, license, distribute, commercialize or otherwise make commercially available (including for no fees or other consideration) ShareConnect as a stand-alone product or service.
(b) U nicast . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under Unicast, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective
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Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to Unicast to the extent owned by SpinCo or any of its Affiliates, in each case to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products or services of Citrix and its Subsidiaries and extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
(c) S creencast . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under Screencast, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to Screencast to the extent owned by SpinCo or any of its Affiliates, in each case to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products or services of Citrix and its Subsidiaries and extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
(d) C oncierge . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under Concierge, , together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to Concierge to the extent owned by SpinCo or any of its Affiliates, in each case to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products or services of Citrix and its Subsidiaries and extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
(e) P atent L icense . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under any and all, (i) Patents owned by any member of the SpinCo Group as of the Effective Time, including all Patents included in the Transferred IP and any Patents filed in SpinCos name through the Effective Time, (ii) Patents
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that cover any Improvements made by SpinCo or its Affiliates to the Citrix Licensed IP, in each case to the extent owned by SpinCo or any of its Affiliates, and (iii) patents issuing from, and national or international counterparts to, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions of, any of the Patents described in the foregoing clauses (i) or (ii), in each case solely in connection with the products or services of Citrix or its Subsidiaries and extensions, upgrades and evolutions thereof, and solely to the extent that the foregoing would infringe a Necessary Claim, and including the rights to make, have made, use, develop, sell, have sold, offer for sale, and import any such products or services.
(f) R estriction . Starting on the Effective Time and immediately and automatically terminating with respect to any item of SpinCo Licensed IP as of such time as any such item of SpinCo Licensed IP is assigned or transferred to any Person that is not a member of the SpinCo Group, or upon any change of control or other one or more events or transactions by which any member of the SpinCo Group that owns such item of SpinCo Licensed IP ceases to become a member of the SpinCo Group, or otherwise upon such time as any such item of SpinCo Licensed IP, including the right to assert any claim of infringement or other violation thereof, ceases to be exclusively owned and controlled by any member of the SpinCo Group, on an item of SpinCo Licensed IP-by-item of SpinCo Licensed IP basis, Citrix agrees on behalf of itself and its Subsidiaries that the license granted with respect to such SpinCo Licensed IP shall not extend to any activities expressly prohibited under, and subject to any exceptions or restrictions (other than, for clarity, the three (3) year time limitation) set forth in, Section 7.13(c) of the Merger Agreement.
(g) SpinCo Codec . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under the SpinCo Codec to use the same in connection with the products and services of Citrix into which such SpinCo Codec is incorporated as of the Effective Time, as such products and services exist as of the Effective Time and including extensions, upgrades and evolutions thereof, including the right to make Improvements to such SpinCo Codec. SpinCo shall use commercially reasonable efforts to negotiate a separate written agreement with Citrix to assist Citrix with bug fixes, troubleshooting and other technical support as may be reasonably requested by Citrix from time to time, at a rate to be negotiated in good faith and agreed upon by the Parties.
(h) Definitions of SpinCo Licensed IP . As used herein:
(i) Concierge means the Software known as Concierge as of the Effective Time, in object code and source code.
(ii) GoToMyPC means the Software known as GoToMyPC as of the Effective Time, in object code and source code.
(iii) Screencast means the Software known as Screencast as of the Effective Time, in object code and source code.
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(iv) SpinCo Codec means any and all Intellectual Property (other than Marks) owned by any member of the SpinCo Group as of the Effective Time in and related to the SpinCo Codec described in Schedule D hereto.
(v) SpinCo Licensed IP means, collectively, (A) the SpinCo Licensed Patents, (B) the SpinCo Codec, and (C) any and all Intellectual Property (other than Marks) licensed by SpinCo pursuant to Section 2.2(a)-(d) and Section 2.2(g) .
(vi) SpinCo Licensed Patents means the Patents that are licensed to Citrix pursuant to Sections 2.2(a) through Section 2.2(e) above, including as set forth in Schedule C hereto.
(vii) Unicast means the Software known as Unicast as of the Effective Time, in object code and source code.
Section 2.3 Sublicenses . A Licensee may not sublicense any of its rights under the licenses granted to it pursuant to this Agreement except to (a) Affiliates of such Licensee, or (b) other Persons providing services for the benefit of Licensee in connection with the businesses, products and services of Licensee that are covered by the licenses granted herein (each such other Person, a Third Party Sublicensee and, together with the Affiliates described in clause (a), a Sublicensee ). Each permitted sublicense to a Third Party Sublicensee shall be granted pursuant to a written agreement which at all times (i) is subject to, and consistent with, the terms and conditions of this Agreement, and (ii) includes provisions regarding confidentiality, ownership and use restrictions of the Licensed IP licensed to such Licensee at least as protective of Licensor as the provisions of this Agreement. In addition, without limiting the foregoing, Licensee shall have the right to grant distribution and resale rights to distributors, in each case solely to the extent necessary in connection with the distribution and resale of products and services within the scope of the applicable license granted to such Licensee (collectively, Distributors ), in each case pursuant to a written agreement which at all times (A) is subject to, and consistent with, the terms and conditions of this Agreement, and (B) includes provisions regarding confidentiality, ownership and use restrictions of the Licensed IP at least as protective of Licensor as the provisions of this Agreement. Without limiting the foregoing, Licensee shall have the right to grant customer and end-user rights in connection with such customers and end-users use of products and services in accordance with this Agreement. For clarity, granting a sublicense, or distribution and resale rights, shall not relieve Licensee of any obligations hereunder and Licensee shall cause all of its Sublicensees to comply, and shall be jointly and severally responsible and liable hereunder for all Sublicensees and Distributors compliance, with all terms and conditions hereof applicable to Licensee, including the use restrictions and confidentiality obligations, and all terms and conditions of such sublicense.
Section 2.4 Confidentiality of Proprietary Materials .
(a) Notwithstanding anything to the contrary herein, each Licensee shall, and shall cause its Affiliates and permitted Sublicensees and Distributors to, at all times hold in strict confidence and not disclose, divulge or release in any manner or to any Person, or
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use except solely as and to the extent expressly permitted hereunder and at all times strictly in accordance with all terms and conditions hereof, any Software source code and associated documentation constituting, embodying or included in the Citrix Licensed IP or SpinCo Licensed IP licensed to such Licensee (collectively, the Proprietary Materials ). Licensee shall protect and maintain the confidentiality of all Proprietary Materials using the same degree of care as it uses with respect to its own most sensitive confidential trade secrets and at all times with no less than the highest industry standards of confidentiality and information security.
(b) Licensee shall not disclose any Proprietary Materials except solely to such of its Sublicensees, Distributors, employees and contractors and customers who are bound by written confidentiality agreements no less protective than the terms of this Agreement and who strictly need to know such information for the purpose of exercising Licensees rights in accordance with this Agreement, and solely to the extent that they need to know the same for such purpose. Without limiting the foregoing, Licensee shall at all times restrict access to the Proprietary Materials only to such of its employees and contractors with clearance levels at least sufficient to be granted access to the most sensitive source code of Licensee, and to customers pursuant to source code escrow agreements with reputable source code escrow agents, and Licensee shall at all times use commercially reasonable efforts to track and maintain accurate records of each such employee, including the identity, title and current clearance level thereof.
(c) Licensee shall immediately notify Licensor upon Licensee becoming aware of any misuse of or unauthorized access to or disclosure of any Proprietary Materials, and Licensee shall fully cooperate with Licensor and comply with all requests of Licensor in connection therewith, without limiting any other rights of Licensor or obligations of Licensee hereunder.
(d) Licensee shall be released from the foregoing obligations with respect to a specific item of Proprietary Materials only if and at such time as Licensor notifies Licensee in writing that such item is no longer proprietary or confidential material of Licensor or has become publicly available through no fault of Licensee.
(e) In the event that Licensee is compelled by order of an applicable Governmental Authority to disclose Proprietary Materials, Licensee shall promptly notify Licensor thereof and reasonably cooperate with and assist Licensor to obtain a protective order or otherwise limit such disclosure, and only if Licensee remains so compelled notwithstanding such efforts shall Licensee have the right to disclose to such Governmental Authority such specific items of Proprietary Materials solely to the extent so compelled, provided that Licensee shall use commercially reasonable efforts to obtain confidential treatment of any such disclosed information. Notwithstanding any such disclosure, Licensee shall remain obligated under this Section 2.4 with respect to all Proprietary Materials.
(f) Licensee agrees that irreparable damage may occur in the event that the provisions of this Section 2.4 are not performed in accordance with their specific terms. Accordingly, it is hereby agreed that Licensor shall have the right to seek specific performance, and injunctive or other equitable relief in accordance with Section 7.2 , in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative.
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(g) Without limiting Licensees obligations under this Section 2.4 or under Section 6.6 of the Separation Agreement and Section 7.11(a) of the Merger Agreement, Licensee acknowledges and agrees that all information other than the Proprietary Materials constituting the Citrix Licensed IP or SpinCo Licensed IP licensed to Licensee that is confidential and proprietary to the Licensor (collectively, Confidential Information ) shall be maintained by Licensee in confidence, using the same degree of care to protect and maintain the confidentiality of such Confidential Information that Licensee uses with respect to its own information of a similar nature and at all times with no less than a reasonable degree of care. Except as authorized in writing by Licensor, Licensee shall not disclose or permit to be disclosed any Confidential Information to any Person, (i) except as may be reasonably required in connection with the exercise of Licensees rights or licenses in accordance with this Agreement, and (ii) except to Licensees Sublicensees, Distributors, employees, contractors and customers who are informed by Licensee of the confidential nature of the Confidential Information and are obligated to maintain its confidential nature. Confidential Information does not include any information that (A) is in or becomes part of the public domain through no fault of Licensee, (B) is obtained by Licensee without obligations of confidentiality from a Third Party having the legal right to use and disclose such information, or (C) is independently developed by Licensee without use of or reference to such information. Without limiting the foregoing, Licensee may disclose Confidential Information to the extent required by any Governmental Authority, provided that Licensee shall notify Licensor of any such requirement and reasonably cooperate with Licensors efforts to obtain a protective order or otherwise limit such required disclosure.
(h) The provisions of this Section 2.4 shall survive any expiration or termination of this Agreement in perpetuity.
Section 2.5 No Disclosure Obligations . Notwithstanding anything to the contrary herein and without limitation to any obligations under the Merger Agreement and the Separation Agreement, neither Licensor shall have any obligation hereunder to provide to the Licensee any tangible or intangible embodiments of or other materials relating to any Licensed IP of such Licensor or its Affiliates.
Section 2.6 Reservation of Rights . Each Party reserves its and its Affiliates rights in and to all Intellectual Property that is not expressly licensed hereunder. Without limiting the foregoing, this Agreement and the licenses and rights granted herein do not, and shall not be construed to, confer any rights upon any other Party, its Affiliates, or its Sublicensees or Distributors by implication, estoppel, or otherwise as to any of the other Parties or their respective Affiliates Intellectual Property, except as otherwise expressly set forth herein.
Section 2.7 Third Party Rights . Notwithstanding anything to the contrary herein, the licenses granted under Section 2.1 and Section 2.2 are subject to any rights of or obligations owed to any Third Parties with respect to the applicable Licensed IP pursuant to agreements existing as of the Effective Time between the applicable Licensor or its Affiliates and such Third Parties.
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ARTICLE III
INTELLECTUAL PROPERTY OWNERSHIP
Section 3.1 Ownership . As between the Parties, Licensee acknowledges and agrees that (a) Licensor owns the Licensed IP, (b) neither Licensee, nor its Affiliates or its Sublicensees, will acquire any rights in the Licensed IP, except for the licenses and sublicenses granted pursuant to Section 2.1 and Section 2.2 , and (c) Licensee shall not, and shall cause its Affiliates and its Sublicensees to not, represent that they have an ownership interest in any of the Licensed IP. For the avoidance of doubt, and subject to and without limiting any provision in the Separation Agreement, (i) Citrix acknowledges SpinCos exclusive ownership of GoToMyPC (including any GoToMyPC Software from which ShareConnect was derived or based or which is embedded or incorporated in ShareConnect), and (ii) SpinCo acknowledges Citrixs exclusive ownership of ShareConnect (subject to SpinCos rights in any GoToMyPC code incorporated or embedded in Share Connect and licensed to Citrix and its Subsidiaries pursuant to this Agreement).
Section 3.2 Assignment . To the extent that a Party (the Assigning Party ), its Affiliates, or its Sublicensees are assigned or otherwise obtain ownership of any right, title, or interest in or to any Intellectual Property in contravention of Section 3.1 , such Assigning Party hereby assigns, and shall cause its Affiliates and Sublicensees to assign, to the applicable other Party all such right, title, and interest. Upon such other Partys request, the Assigning Party shall, at its own cost and expense, take all reasonable actions, including executing all assignments and other documents, necessary to perfect or record such other Partys right, title, and interest in and to such Intellectual Property.
Section 3.3 Improvements . As between Citrix and SpinCo, each Party shall own all improvements, modifications and derivative works ( Improvements ) made by or on behalf of such Party to the Licensed IP of the other Party; provided, that, with respect to Licensee, such Improvements shall not include, and shall be subject to the provisions of this Agreement as they concern, the Licensed IP to which such Improvements are made .
ARTICLE IV
PROSECUTION AND MAINTENANCE
Section 4.1 Responsibility . As between the Parties, Licensor shall be solely responsible for (without any obligation with respect to, subject to Section 4.2 ) filing, prosecuting, and maintaining all Licensed Patents owned by such Licensor, at its sole cost and expense.
Section 4.2 Failure to Prosecute or Maintain . In the event that SpinCo decides to forego prosecution or maintenance of any SpinCo Licensed Patent specifically set forth in Schedule C , or Citrix decides to forego prosecution or maintenance of any Citrix Licensed Patent specifically set forth in Schedule B , each of SpinCo or Citrix, as Licensor, shall notify Licensee thereof at least sixty (60) days prior to the deadline for taking a necessary step to continue to prosecute or maintain the applicable Licensed Patent. Upon receipt of such notice, Licensee will have the option of assuming responsibility for such prosecution and maintenance at its sole
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expense. If Licensee elects to assume responsibility for prosecution and maintenance pursuant to this Section 4.2 , Licensee shall notify Licensor thereof at least ten (10) days prior to the final deadline, and, if Licensor notifies Licensee within five (5) days following such notice from Licensee that Licensor will not continue such prosecution or maintenance, Licensor shall assign, and hereby does irrevocably assign, its entire right, title, and interest in such Patent to Licensee, and as of such assignment such Patent shall cease to be a Licensed Patent of such Licensor hereunder; provided , that , such Patent shall thereafter be deemed a Licensed Patent of the assignee Party hereunder and licensed to the assigning Party in accordance with Section 2.1 and Section 2.2 (and with such scope and additional terms and conditions as the Parties may mutually agree upon in writing).
Section 4.3 No Additional Obligations . This Agreement shall not obligate any Party to maintain, register, prosecute, pay for, enforce, or otherwise manage any Intellectual Property except as expressly set forth herein.
ARTICLE V
ENFORCEMENT
Section 5.1 Defense and Enforcement . Licensor shall have the sole initial right, but not the obligation, to elect to bring an Action or enter into settlement discussions regarding (a) any Third Party activities that constitute, or would reasonably be expected to constitute, an infringement, misappropriation, or other violation of any Licensed IP of such Licensor ( Third Party Infringement ) or (b) any Third Party allegations of invalidity or unenforceability of any Licensed IP of such Licensor ( Invalidity Allegations ), in each case at Licensors sole cost and expense. The applicable Licensor (the Enforcing Party ) shall control such Action or settlement discussions (as applicable).
Section 5.2 Cooperation . If the Enforcing Party brings an Action or enters into settlement discussions in accordance with Section 5.1 , the applicable Licensee shall join as a party to such Action or proceeding upon the Enforcing Partys reasonable request and at the Enforcing Partys cost and expense solely to the extent necessary for standing purposes. Under such circumstances, such Licensee shall have the right to be represented by counsel (which shall act in an advisory capacity only, except for matters solely directed to such Licensee) of its own choice in any such Action or proceeding at its own cost and expense.
Section 5.3 Costs, Expenses, and Damages . Any and all amounts recovered by the Enforcing Party in any Action regarding a Third Party Infringement or Invalidity Allegation or settlement thereof shall, unless otherwise agreed, including in an agreement in connection with obtaining consent to settlement, be allocated first to reimbursing the Enforcing Partys costs and expenses incurred in connection therewith (including any costs and expenses that the Enforcing Party must reimburse to the applicable Licensee), then to reimbursing such Licensees costs and expenses to the extent provided in this Article V , and any remaining amounts shall be retained by the Enforcing Party.
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ARTICLE VI
DISCLAIMERS; LIMITATIONS ON LIABILITY
Section 6.1 Disclaimer of Warranties . EACH OF CITRIX AND SPINCO UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND THE MERGER AGREEMENT, NO PARTY TO THIS AGREEMENT IS REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AS TO THE LICENSED IP, INCLUDING ANY IMPLIED WARRANTIES, AS TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, AS TO NONINFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY OF THE LICENSED IP OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR LICENSED IP. EACH OF CITRIX AND SPINCO UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THE MERGER AGREEMENT, ALL LICENSED IP IS BEING PROVIDED ON AN AS IS, WHERE IS BASIS AND LICENSEE SHALL BEAR THE ECONOMIC AND LEGAL RISKS ASSOCIATED THEREWITH.
Section 6.2 Compliance with Laws and Regulations . Each Party hereto shall be responsible for its own compliance with any and all Laws applicable to its performance under this Agreement. FOR THE AVOIDANCE OF DOUBT AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EACH PARTY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED OBLIGATION OR WARRANTY WITH RESPECT TO THE LICENSED IP THAT COULD BE CONSTRUED TO REQUIRE LICENSOR TO PROVIDE LICENSED IP HEREUNDER IN SUCH A MANNER TO ALLOW A LICENSEE TO ITSELF COMPLY WITH ANY LAW APPLICABLE TO THE ACTIONS OR FUNCTIONS OF SUCH LICENSEE.
Section 6.3 Limitation on Liability . EXCEPT FOR A PARTYS (A) BREACH OF ITS OBLIGATIONS UNDER SECTION 2.4 , OR (B) INFRINGEMENT OR MISAPPROPRIATION OF ANY OTHER PARTYS INTELLECTUAL PROPERTY (INCLUDING IN THE CASE OF CITRIX A BREACH OF SECTION 2.2(f) ), NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY.
ARTICLE VII
TERM
Section 7.1 Term . The term of this Agreement shall (a) with respect to each Patent that is included in the Licensed IP, expire at such time no Valid Claim licensed to the applicable Licensee hereunder remains in such Patent, (b) with respect to all Copyrights that are
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licensed hereunder, expire upon expiration or entry into the public domain of such Copyright and (c) with respect to all other Intellectual Property that is licensed or sublicensed hereunder, be perpetual.
Section 7.2 No Termination; Specific Performance . Notwithstanding anything to the contrary herein, (i) this Agreement may not be terminated unless agreed to in writing by the Parties, and (ii) all rights and licenses granted to Licensee hereunder shall be perpetual and irrevocable and not subject to termination under any circumstances unless agreed to in writing by the Parties. The Parties acknowledge and agree that the Parties would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by monetary damages alone and that the Parties would not have any adequate remedy at law. Accordingly, in addition to any other right or remedy to which any Party may be entitled, at law or in equity (including monetary damages), such party shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. The Parties agree that they will not contest the appropriateness of specific performance as a remedy.
Section 7.3 Effect of Expiration and Termination; Accrued Rights; Survival .
(a) Accrued Rights . Upon the earlier of expiration or termination of this Agreement, in part or in its entirety, all licenses and rights granted to Licensee with respect to the Intellectual Property to which such expiration or termination relates shall immediately cease. Expiration and termination of this Agreement, in part or in its entirety, shall be without prejudice to any rights which shall have accrued to the benefit of any Party prior to such expiration and termination (as applicable). Any sublicenses granted by Licensee to any customer or end user prior to the effective date of any expiration or termination of this Agreement shall survive such expiration or termination in accordance with their respective terms.
(b) Surviving Obligations . Expiration and termination of this Agreement, in part or in its entirety, shall not terminate Licensees obligation to pay all amounts for which Licensee is obligated to reimburse Licensor hereunder that have accrued prior to the effective date of such expiration or termination (as applicable). The rights and obligations of the Parties pursuant to the following sections of this Agreement shall survive any expiration or termination of this Agreement: Article I , Article II , Article III , Article VI (except with respect to the first sentence of Section 6.2 ), Article VII and Article VIII .
(c) Effect of Licensor Bankruptcy . All rights and licenses granted by Licensor under this Agreement are and shall be deemed to be rights and licenses to intellectual property, and all Licensed IP is and shall be deemed to be embodiments of intellectual property, in each case, as such terms are used in and interpreted under Section 365(n) of the United States Bankruptcy Code. Licensee shall have all rights, elections and protections under the United States Bankruptcy Code and all other applicable bankruptcy, insolvency and similar laws with respect to this Agreement and the subject matter hereof. Without limiting the generality of the foregoing, Licensor acknowledges and agrees that, if Licensor becomes subject
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to any bankruptcy or similar proceeding, subject to Licensees rights of election under Section 365(n), all rights, licenses and privileges granted to Licensee under this Agreement will continue subject to the respective terms and conditions hereof, and will not be affected, even by Licensors rejection of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Complete Agreement; Construction . This Agreement, including the Exhibits and Schedules, and the Merger Agreement, Separation Agreement and Ancillary Agreements constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. In the event of any inconsistency between this Agreement and any Schedule hereto, the Schedule shall prevail. If there is a conflict between any provision of this Agreement and a provision in any of the Merger Agreement or Separation Agreement, this Agreement shall control.
Section 8.2 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in pdf form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
Section 8.3 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by facsimile or email (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party) as shall be specified in a notice given in accordance with this Section 8.3 ):
If to Citrix:
Citrix Systems, Inc.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile: (954) 267-3101
Attn: General Counsel
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street, 23rd Floor
Boston, MA 02116
Facsimile: (617) 573-4822
Attention: Margaret A. Brown
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If to LogMeIn, or to SpinCo:
LOGMEIN, INC.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attention: Chief Financial Officer
General Counsel
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
John Hancock Tower
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attention: John H. Chory
Bradley C. Faris
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
Section 8.4 Amendment and Waivers .
(a) This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 8.4(b).
(b) Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Parties; (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other Parties pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Parties or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
Section 8.5 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this Section 8. 5 shall be null and void. Notwithstanding the foregoing in this Section 8. 5 , Citrix
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or SpinCo may assign its rights or delegate its duties under this Agreement (i) to a member of its Group (for so long as such member remains a member of such Group) or (ii) in connection with any change of control, merger, acquisition, or sale of all or substantially all of the assets, stock or business of the assigning Party to which this Agreement relates; provided that the member or other assignee agrees in writing to be bound by the terms and conditions contained in this Agreement.
Section 8.6 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
Section 8.7 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party at or after the Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party.
Section 8.8 Third Party Beneficiaries . This Agreement shall be binding upon and inure solely to the benefit of, and be enforceable by, only the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.
Section 8.9 Exhibits and Schedules . The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.
Section 8.10 Dispute Resolution . Any and all Disputes arising hereunder shall be resolved through the procedures provided in Article VII of the Separation Agreement.
Section 8.11 Governing Law . This Agreement and any Dispute shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided , however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with Section 8.3 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v)
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this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
Section 8.12 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8. 12 .
Section 8.13 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
Section 8.14 Interpretation . The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
[ Signature Page Follows ]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.
CITRIX SYSTEMS, INC. | ||||||
By: |
/s/ David J. Henshall |
|||||
Name: | David J. Henshall | |||||
Title: |
Executive Vice President, Chief Operating Officer and Chief Financial Officer |
|||||
GETGO, INC. | ||||||
By: |
/s/ Antonio G. Gomes |
|||||
Name: | Antonio G. Gomes | |||||
Title: | Secretary | |||||
LOGMEIN, INC. | ||||||
By: |
/s/ William R. Wagner |
|||||
Name: | William R. Wagner | |||||
Title: |
President and Chief Executive Officer |
[Signature Page to IP License Agreement]
Exhibit 2.3
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TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this Agreement ) is effective as of immediately prior to the Distribution Effective Time (the Effective Date ), by and among Citrix Systems, Inc., a Delaware corporation ( Citrix ), certain members of the Citrix Group indicated on Exhibit A hereto, GetGo, Inc., a Delaware corporation ( SpinCo ), and certain members of the SpinCo Group indicated on Exhibit B hereto. Party or Parties means Citrix or SpinCo and members of the Citrix Group or SpinCo Group, individually or collectively, as the case may be. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Separation Agreement (as defined below).
RECITALS
WHEREAS, Citrix, SpinCo and LogMeIn, Inc., a Delaware corporation ( LogMeIn ), have entered into a Separation Agreement, dated as of July 26, 2016 (as amended, modified or supplemented from time to time in accordance with its terms, the Separation Agreement ), pursuant to which Citrix has agreed to separate (the Separation ) the SpinCo Business from the remaining business of Citrix and its Subsidiaries;
WHEREAS, pursuant to the Separation Agreement, Citrix has agreed to Transfer, or to cause the other members of its Group to Transfer, to the members of the SpinCo Group certain of the Assets owned or held by Citrix and the other members of its Group to conduct the SpinCo Business, and to assign certain Liabilities associated with the SpinCo Business to the SpinCo Group, and the members of the SpinCo Group have agreed to accept such Assets and Assume such Liabilities;
WHEREAS, to implement the Separation, following the reorganization of the SpinCo Business and upon the terms and conditions set forth in the Separation Agreement, Citrix has agreed to distribute all of the shares of SpinCo Common Stock to Citrix stockholders, whether by way of the One-Step Spin-Off or the Exchange Offer (followed by any Clean-Up Spin-Off, if necessary) (the Distribution );
WHEREAS, Citrix, SpinCo, LogMeIn and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of LogMeIn ( Merger Partner Sub ), have entered into an Agreement and Plan of Merger, dated as of July 26, 2016 (as amended, modified or supplemented from time to time in accordance with its terms, the Merger Agreement ), pursuant to which, immediately following the Distribution, Merger Partner Sub shall merge with and into SpinCo (the Merger ) and, in connection with the Merger, SpinCo Common Stock shall be converted into the right to receive shares of common stock of LogMeIn, par value $0.01 per share, on the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, in connection with the transactions contemplated by the Separation Agreement and the Merger Agreement, the Parties desire that Citrix provide certain services to SpinCo, and SpinCo provide certain services to Citrix, in each case on the terms and conditions set forth herein (in any instance, the Party providing services hereunder being referred to as the Service Provider and the Party receiving services hereunder being referred to as the Service Recipient );
NOW, THEREFORE, in consideration of the foregoing and the respective warranties, covenants and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions . Each of the following terms is defined in the Section set forth opposite such term:
Term |
Section | |
Additional Services |
Section 2.1.3 | |
Agreement |
Preamble | |
Citrix |
Preamble | |
Damages |
Section 9.4.1 | |
Dispute |
Section 4.4 | |
Distribution |
Recitals | |
Effective Date |
Preamble | |
Expenses |
Section 6.2 | |
Fees |
Section 6.1 | |
Force Majeure Event |
Section 7.1 | |
Indemnified Party |
Section 9.4.3 | |
Indemnifying Party |
Section 9.4.3 | |
Joint Transition Steering Committee |
Section 4.3 | |
LogMeIn |
Recitals | |
Merger |
Recitals | |
Merger Agreement |
Recitals | |
Merger Partner Sub |
Recitals | |
New Data |
Section 5.2 | |
Other Intellectual Property |
Section 3.5 | |
Party or Parties |
Preamble | |
Required Consents |
Section 3.4 | |
Security Regulations |
Section 5.3.1 | |
Separation |
Recitals | |
Separation Agreement |
Recitals | |
Service Commencement Date |
Section 8.1.1 | |
Service Leads |
Section 4.1 | |
Service Performance Period |
Section 8.1.1 | |
Service Provider |
Recitals | |
Service Recipient |
Recitals | |
Service Taxes |
Section 6.5 | |
Service Termination Date |
Section 8.1.1 | |
Services |
Section 2.1.4 | |
Services Schedules |
Section 2.1.2 |
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SpinCo |
Preamble | |
Subcontractors |
Section 2.9 | |
Systems |
Section 5.3.1 | |
Tax Matters |
Section 10.5 | |
Third Party Intellectual Property |
Section 3.5 | |
Transition Leads |
Section 4.2 | |
Transition Services |
Section 2.1.2 |
References in this Agreement to Citrix shall also be deemed to refer to applicable members of the Citrix Group, references to SpinCo shall also be deemed to refer to applicable members of the SpinCo Group, and in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Citrix or SpinCo shall be deemed to require, Citrix or SpinCo, as the case may be, to cause the applicable members of the Citrix Group or the SpinCo Group, respectively, to take or refrain from taking any such action.
ARTICLE 2
PROVISION OF THE SERVICES
2.1 Description of the Services . The Service Provider shall provide, or cause to be provided, Transition Services (as defined below) and Additional Services (as defined below) in support of the SpinCo Business or the Citrix Business, as applicable. The Service Recipient shall use its commercially reasonable efforts to provide such assistance and resources as are required to receive the Services from the Service Provider, including without limitation the purchase of any software and hardware assets required to receive the Services, in accordance with the terms and conditions of this Agreement, provided that the Parties shall bear equally the costs and expenses incurred in connection with acquiring any such assets. The Service Provider shall be relieved of its obligations hereunder to the extent that (a) the Service Recipient fails to provide the assistance or resources referred to in the previous sentence, (b) such failure renders performance by the Service Provider of its obligations hereunder unlawful or (in the Service Providers reasonable determination) impracticable and (c) such failure (i) if reasonably capable of being cured, is not cured by the Service Recipient within thirty (30) days following written notice to the Service Recipient by the Service Provider of any such purported failure (it being understood and agreed that the Service Provider shall be relieved of its obligations hereunder during any such cure period), or (ii) is not reasonably capable of being cured. Notwithstanding any provision herein to the contrary, no Services provided under this Agreement shall include, or shall be construed as constituting, accounting, legal or Tax advice or shall create any fiduciary obligations on the part of the Service Provider or any of its Affiliates to any Person, including to the Service Recipient or any of its Affiliates, or to any plan trustee or any customer of any of them.
2.1.1 Recent Historical Practice . As used herein, Recent Historical Practice shall mean the performance of services for the SpinCo Business or Citrix Business, as applicable, of the nature and at the level, volume and frequency of such services or similar services, in each case during the twelve (12) months immediately prior to the date hereof, taking into account, where applicable, any inherent and material differences resulting from the Service Provider providing services outside of its organization.
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2.1.2 Transition Services . The Service Provider or its designee shall provide the services ( Transition Services ) specified in Schedule I (with respect to Services to be provided by Citrix to SpinCo) or Schedule II (with respect to Services to be provided by SpinCo to Citrix) (such schedules, the Services Schedules ), as applicable, in accordance with the terms and conditions for such Transition Services set forth in the applicable Services Schedule or as otherwise set forth in this Agreement.
2.1.3 Additional Services . The Service Recipient may request additional services to the extent such services reasonably relate to the transition of the SpinCo Business to SpinCo or the separation of the SpinCo Business from Citrix, as applicable ( Additional Services ); provided , however , that Additional Services shall be limited solely to services that were performed pursuant to Recent Historical Practice and that are reasonably necessary for the conduct of the SpinCo Business or the Citrix Business, as applicable, after the Distribution Effective Time, unless otherwise expressly agreed to by the Service Provider. Upon receipt of any such request, (a) if receipt of such request occurs within ninety (90) days after the date hereof, the Service Provider shall use its commercially reasonable efforts to provide any such Additional Services, and (b) if receipt of such request occurs more than ninety (90) days after the date hereof, the Service Provider shall determine in its sole discretion whether to provide such Additional Services. If the Service Provider provides such Additional Services in accordance with the preceding sentence, the Parties shall: (x) negotiate in good faith the terms of the provision of such Additional Services, including the Fees for such Additional Services and the duration of such Additional Services, provided that the Fees shall, during the first six (6) months after the Effective Date, be equal to the Service Providers actual direct cost to provide the Additional Services, plus five percent (5%), and thereafter shall be equal to the Service Providers actual direct cost to provide the Additional Services, plus ten percent (10%); and (y) document the terms of such Additional Services in an addendum to the applicable Services Schedule.
2.1.4 Scope of Services . For the avoidance of doubt, when used in this Agreement, reference to Services as between a given Service Provider and Service Recipient shall include all of the services set forth on the applicable Services Schedule (including in any addenda thereto). All of the Services shall be for the sole use and benefit of the Service Recipient.
2.2 Performance Standards . The Service Provider shall perform the Services in a commercially reasonable manner (including as to timing, efficiency and workmanship) and in accordance with the standards, specifications and service levels and the acceptance criteria, if any, set forth in the applicable Services Schedule. Without limiting the generality of the foregoing, the Services shall be provided at the same general level of service, with the same degree of care, with response times and in a manner as would reasonably and ordinarily be expected from a Person complying with applicable Law engaged in the same type of undertaking under the same or similar circumstances and conditions, unless a higher standard for any particular Service is required by the applicable Services Schedule. The Service Recipient acknowledges and agrees that in rendering Services hereunder, the Service Provider may be using and relying upon, without any independent investigation or verification thereof, information that is or will be furnished to the Service Provider by or on behalf of the Service Recipient, and the Service Provider will not in any respect be responsible for the accuracy or
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completeness of any of the foregoing kinds of information, except as otherwise set forth in the Services Schedules. To the extent the Service Recipient shall provide any instruction with respect to the performance of a particular Service in writing to the Service Provider, the Service Provider shall be entitled to rely on such written instruction without liability hereunder to the extent directly arising or resulting from its performance of such Service in accordance with such instruction, except in the case of the Service Providers (or its Subcontractors) gross negligence, fraud or willful misconduct.
2.3 Expansion of Services; Service Conflicts . Except as expressly provided herein, the Service Provider shall not be required to provide any Service (a) to the extent such Service was not provided in support of the SpinCo Business or the Citrix Business, as applicable, pursuant to Recent Historical Practice, or (b) at a level, volume or frequency greater than the level, volume or frequency of such Service as used by the SpinCo Business or the Citrix Business, as applicable, pursuant to Recent Historical Practice. If the Service Recipient requests that any Service be provided at a greater level, volume or frequency than the level, volume or frequency of such Service (or analogous services) as used by the SpinCo Business or the Citrix Business, as applicable, pursuant to Recent Historical Practice, and such requested greater level, volume or frequency results from the Service Recipients operation of its business in the ordinary course and not from any acquisition, purchase, merger or other business combination by the Service Recipient, then the Service Provider shall use commercially reasonable efforts to provide such Service at such greater level, volume or frequency, except (i) to the extent that the Service Provider does not have adequate resources to provide such Service at such greater level, volume or frequency or (ii) if the provision of such Service at such greater level, volume or frequency would, in the Service Providers reasonable determination, unduly burden or disrupt the operation of the Service Providers business. The Fees for any Service shall be adjusted upward solely to the extent of the amount that the Service Providers actual direct cost of providing such Service at any greater level, volume or frequency increases. If there is a conflict between the immediate needs of Parties as to the use of or access to a particular Service, which conflict cannot reasonably be avoided, the Service Provider shall, in its reasonable discretion, establish reasonable priorities as between the Parties, provided that such priorities do not unduly burden or disrupt the operation of the Service Recipients business. The Service Provider shall provide notice to the Service Recipient as promptly as reasonably practicable prior to the establishment of such priorities.
2.4 Temporary Suspension; Modification or Termination of Services . The Service Provider shall have the right from time to time to shut down or temporarily suspend the operation of any systems or facilities necessary for the provision of any Service for modification, upgrade, maintenance or replacement or for legal, compliance or security purposes, whenever in its reasonable judgment such action is necessary, and shall be relieved of its obligations to provide Services during such shut-down or suspension. The Service Provider shall provide advance notice of any such scheduled shut-downs or suspensions and use reasonable efforts to provide advance notice of any other shut-down or suspension, and shall use commercially reasonable efforts to minimize disruption to the operation of the SpinCo Business or the Citrix Business, as applicable, in connection with any such shut-down or suspension.
2.5 Significant Service or System Changes . The Service Provider shall have the right, at its expense, to upgrade or replace its systems through which Services are provided to the
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Service Recipient as part of any upgrade or replacement made generally to the Service Providers shared systems. The Service Provider shall notify the Service Recipient in writing reasonably in advance of any such upgrade or replacement (other than routine software upgrades). In the event the Service Provider determines to upgrade or replace any of its systems through which Services are provided to the Service Recipient hereunder, then, any additional or incremental costs or expenses shall be borne by the Service Provider, including costs and expenses to the extent incurred in connection with such upgrade or replacement as a result of the need to purchase additional capacity to accommodate the SpinCo Business or the Citrix Business, as applicable, incremental license or similar fees required to be paid to Third Parties or installation of security hardware and software items necessary to enable the Service Provider to use such systems to provide Services to the Service Recipient hereunder.
2.6 Compliance with Laws . The Service Provider shall not be required to provide Services which violate any applicable Laws in connection with its performance of the Services.
2.7 Acknowledgment and Agreement . The Service Recipient acknowledges that the Services provided hereunder are transitional in nature and are furnished by the Service Provider solely in connection with the transactions contemplated by the Separation Agreement and the Merger Agreement. The Service Recipient acknowledges that the Service Provider is not in the business of providing the Services to Third Parties and that neither Party has any long-term interest in the Service Provider continuing the provision of any or all of the Services. The Service Recipient shall: (a) promptly (and in any event within sixty (60) days) following the Effective Date, provide to the Service Provider a plan and timeline, in form and detail reasonably satisfactory to the Service Provider, for the migration to the Service Recipient or Third Party suppliers of each of the Services, and (b) as promptly as practicable after the Effective Date, migrate the provision of each Service from the Service Provider to the Service Recipient or a Third Party supplier. Nothing in this Section 2.7 shall be deemed to extend any Service Termination Date in any manner.
2.8 Limitations on Services . The Service Recipient acknowledges that the Service Provider is agreeing to provide Services in order to facilitate the Service Recipients operation of the SpinCo Business or the Citrix Business, as applicable, as described in the Separation Agreement and the Merger Agreement and as otherwise provided herein. The Service Provider shall not be required to expand its facilities or maintain the employment of any specific Persons in order to provide the Services to the Service Recipient, and except as otherwise provided in this Agreement, the Service Provider shall not be required to incur any capital expenditures or employ additional personnel in order to provide the Services to the Service Recipient.
2.9 Subcontractors . The Service Provider may use contractors, subcontractors, vendors or other Third Parties (collectively, Subcontractors ) to provide some or all of the Services, provided that the Service Provider (a) shall use reasonable care in selecting any such Subcontractors to perform Services hereunder, (b) shall not be relieved of its obligations under this Agreement as a result of the use of any Subcontractors, (c) shall remain liable and responsible for the acts and omissions of its Subcontractors in providing, or failing to provide, the Services under this Agreement, (d) shall specify in the Services Schedules which Services will be subcontracted and (e) shall comply with the terms and conditions of Schedule 2.9 attached hereto.
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2.10 Supervision and Compensation of Personnel . Except as otherwise expressly provided herein, the Service Provider shall, and shall cause its Affiliates to, select, employ, supervise and direct all of its personnel providing the Services hereunder and shall be solely responsible for the payment of all wages, bonuses, commissions, benefits (including employee benefit plans, programs and arrangements) and any other direct and indirect compensation for its personnel assigned to perform the Services under this Agreement, including workers compensation insurance, employment taxes and other employer liabilities relating to such personnel as required by Law to be provided or otherwise provided by the Service Provider and its Affiliates. The Service Provider shall, and shall cause its Affiliates to, be independent contractors with respect to the Service Recipient in connection with the performance of the Services hereunder and none of the Service Providers or its Affiliates employees performing services in connection therewith shall be deemed employees of the Service Recipient.
ARTICLE 3
MANAGEMENT AND CONTROL; CONSENTS
3.1 Cooperation; Access . Each Party agrees to use commercially reasonable efforts to cooperate with the other in connection with the provision and receipt of Services hereunder. The Service Recipient hereby grants to the Service Provider, at all times during the term of this Agreement, the right to ingress and egress from the premises occupied by the Service Recipient subject to such restrictions as the Service Recipient may reasonably require (including written non-disclosure agreements, restricted access for only designated areas and other requirements, with individuals who shall enter such premises), for reasonable purposes and solely to the extent necessary to the delivery of the Services hereunder or the exercise of any right under this Agreement or the performance of any obligations required by this Agreement. Except as expressly provided herein, the Service Provider shall not be required to grant the Service Recipient access to any proprietary information of the Service Provider or any of its Affiliates pursuant to this Agreement.
3.3 Certain Service Recipient Obligations .
3.3.1 Policies and Procedures; Use of Services . The Service Recipient shall, and shall cause its Affiliates to, adhere to applicable Service Provider policies and procedures relevant to the Services provided or made available to the Service Recipient or that the Service Recipient has in its possession.
3.3.2 Limited Use of Services . The Service Recipient shall use the Services only in connection with (a) the conduct of the SpinCo Business or the Citrix Business, as applicable, in the ordinary course (together with natural extensions and growth of the SpinCo Business or the Citrix Business, as applicable, during the term of this Agreement), (b) the separation of the SpinCo Business from the Citrix Business, (c) the separation of the Service Recipient from the Service Providers shared IT systems and (d) the integration of the Service Recipients Group into the shared IT systems of the Service Recipient and its Affiliates. Except
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as otherwise provided in Section 10.13 (Assignment), the Service Recipient shall not resell, assign or subcontract any of the Services to any Third Party and shall permit the use of the Services by a Third Party solely in connection with operation of the SpinCo Business or the Citrix Business, as applicable, in accordance with this Agreement.
3.3.3 Limited License . The Parties hereby acknowledge and agree that certain Third Party licenses or other agreements, software or hardware required for use by the Service Provider, its Affiliates and designated Third Party providers in providing Services to the Service Recipient under this Agreement may be Assets of the Service Recipient pursuant to the Separation Agreement. The Service Recipient hereby grants and licenses to the Service Provider, its applicable Affiliates and any applicable designated Third Party providers the right to possess, access and use such licenses or other agreements, software or hardware solely to the extent necessary for rendering Services under and in accordance with this Agreement.
3.4 Required Consents . Notwithstanding anything to the contrary herein, this Agreement shall not constitute any agreement to provide any Service to the extent the provisions of such Service in accordance with this Agreement would require any consent, waiver, permit, license or sublicense of any Third Party (collectively, Required Consents ) unless and until such Required Consents shall have been obtained. With respect to any Required Consents not obtained prior to the date of this Agreement, from and after the date hereof, the Service Provider shall use commercially reasonable efforts to obtain such Required Consents, and the Service Recipient shall provide such cooperation as may be reasonably requested by the Service Provider in connection with its efforts to obtain any such Required Consents; provided , that the Parties shall bear equally any costs and expenses incurred in connection with seeking or obtaining any Required Consents.
3.5 Intellectual Property . In connection with the performance of the Services hereunder, either Party may have access to or use of certain Intellectual Property disclosed or licensed by Third Parties to the other Party or its Affiliates that is not Licensed IP (as defined in the IP License Agreement) ( Third Party Intellectual Property ), as well as certain Intellectual Property owned by the other Party that is not Licensed IP ( Other Intellectual Property ). To the extent necessary or appropriate to protect any such Third Party Intellectual Property or Other Intellectual Property, the Service Recipient shall enter into non-disclosure agreements with Third Parties or take other reasonable actions (at the Service Providers expense) with respect to such Third Party Intellectual Property or Other Intellectual Property as may be reasonably requested by the Service Provider (with respect to the Other Intellectual Property) or such Third Parties (with respect to the Third Party Intellectual Property) from time to time. The Service Provider hereby grants, on behalf of itself and its Affiliates, to the Service Recipient a license to access and use such Third Party Intellectual Property and Other Intellectual Property solely to the extent reasonably necessary in connection with receiving and fully utilizing the Services under and in accordance with this Agreement. Other than as permitted by this Agreement, the Service Recipient shall not have any rights in or to any such Third Party Intellectual Property or Other Intellectual Property as a result of any such access or use. The Service Recipient shall comply in all respects with the terms and conditions of any agreement between any Third Parties and the Service Provider or its Affiliates, as the case may be, to the extent such agreements have been provided to the Service Recipient, with respect to any Third Party Intellectual Property disclosed to or used by the Service Recipient as if the
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Service Recipient were a direct party to such arrangements (other than with respect to any payment terms thereunder), including any obligations with respect to confidentiality and restrictions on use of Third Party Intellectual Property. Without limiting the foregoing, it is acknowledged and agreed that the Service Recipient shall not have any rights in or access to, and the Service Provider shall ensure that no copies are provided to the Service Recipient or any of its Affiliates of, any source code with respect to any Third Party Intellectual Property or Other Intellectual Property. The Service Recipient shall not, through reverse engineering or any other means, attempt to access any such source code and shall use the Third Party Intellectual Property and the Other Intellectual Property only for its intended use hereunder. In the event of a conflict between this Section 3.5 and the IP License Agreement, the provisions of the IP License Agreement shall prevail.
ARTICLE 4
GOVERNANCE
4.1 Service Leads . The initial points of contact for the Service Provider and the Service Recipient with respect to day-to-day matters regarding the provision of a particular Service, including attempting to resolve any issues that may arise in connection with the provision of such Service, shall be the functional team leaders designated on the applicable Services Schedule with respect to such Service (collectively, the Service Leads ). The Service Leads shall have the authority to address such daily operational matters and resolve such issues related to the applicable Service; provided , that issues regarding any Service that cannot be resolved by the applicable Service Leads shall be elevated as provided in this ARTICLE 4 .
4.2 Transition Leads . Each Party shall designate and identify to the other Party one or two individuals to coordinate all matters relating to the provision or receipt of Services and the operation of this Agreement generally (collectively, the Transition Leads ). The Transition Leads shall be the principal points of contact between the Parties (a) for all matters that the Service Leads are not able to resolve after using good faith efforts to do so and (b) for all matters relating to the provision or receipt of Services generally or otherwise relating to this Agreement (including requests for transition support, communications with regard to issues surrounding the provision of Services, disagreements between the Parties relating to the provision or receipt of Services and invoice disputes). The Transition Leads shall meet (by teleconference if mutually agreed) on a mutually agreed basis to review the provision of the Services and the operation of this Agreement, including to address, without limitation, the Service Providers compliance with the performance standards set forth in Section 2.2 and the adequacy of the resources and the qualifications of the personnel (including any Subcontractors) used by the Service Provider in providing the Services. The Transition Leads shall be responsible for the oversight and coordination of the provision or receipt of Services, and each shall have the appropriate decision-making authority for their respective Party with respect to the provision and receipt of Services. A Transition Lead may also delegate specific aspects of a Transition Leads responsibilities to one or more persons upon written notice to the other Partys Transition Leads. A Transition Lead and his or her delegates may be replaced at any time and for any reason by the Party that initially appointed such Transition Lead, and such Party or the newly appointed Transition Lead or delegate shall notify the other Party of such replacement and appointment.
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4.3 Steering Committee . The Transition Leads shall negotiate in good faith and attempt to resolve any disputes regarding the matters identified in Section 4.2 . In the event of a failure of the Transition Leads to resolve a dispute under this Agreement within thirty (30) days, either Party may refer such dispute to a committee charged with the responsibility for general oversight of matters under this Agreement (the Joint Transition Steering Committee ). If the issue cannot be resolved by the Joint Transition Steering Committee within thirty (30) days of the submission of such matter to the Joint Transition Steering Committee, either Party may seek resolution of such dispute in accordance with Section 4.4 . The Joint Transition Steering Committee shall be composed of a minimum of three (3) representatives of each Party (including at least one Transition Lead representing each Party). Each Partys representatives on the Joint Transition Steering Committee shall have appropriate decision-making authority from the Party appointing them and shall be reasonably informed of matters under this Agreement. The Joint Transition Steering Committee shall meet (by teleconference if mutually agreed) on a mutually agreed basis to (a) review and attempt to resolve disputes in accordance with this Section 4.3 and (b) review and discuss matters relating to the provision of the Services and the operation of this Agreement that are referred to it by the Transition Leads.
4.4 Dispute Resolution . Prior to initiating any legal action in accordance with the terms of this Agreement, any dispute, controversy or claim arising out of, relating to or in connection with the Services of this Agreement (a Dispute ) that cannot be resolved by the applicable Service Leads after a reasonable period of time (taking into consideration the nature of the Dispute) shall be submitted first to the Transition Leads and, if applicable, the Joint Transition Steering Committee for resolution in accordance with Sections 4.2 and 4.3 . In the event the Joint Transition Steering Committee fails to resolve a Dispute in accordance with Section 4.3 , then either Party may bring an action at law or in equity in accordance with Section 10.6 .
ARTICLE 5
COMPUTER HARDWARE, SOFTWARE AND DATA SECURITY
5.1 Access to Computer Software . The Service Provider, in its sole discretion, may limit access to and the right to use software in connection with the Services solely to those employees of the Service Recipient who need such access and right to use in connection with the provision of the Services. Citrix, in its capacity as the Service Provider, shall also grant access to and the right to use software in connection with the Services to employees of LogMeIn who need such access, provided that SpinCo shall be responsible for any breaches of this ARTICLE 5 by any employee of LogMeIn.
5.2 Data . The Service Provider is authorized to have access to and make use of all data provided by the Service Recipient or created by the Service Provider solely on behalf of the Service Recipient after the Effective Date ( New Data ), as necessary and appropriate for the performance by the Service Provider of its obligations under this Agreement. The Service Provider may not use any New Data for any purpose other than providing the Services.
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5.3 System Security .
5.3.1 Security Policy . The Service Recipient shall comply with all of the Service Providers system security policies, procedures and requirements relating to the Service Providers computer systems or software ( Systems ) which have been provided in writing to the Service Recipient (collectively, Security Regulations ), and shall not tamper with, compromise or circumvent any security or audit measures employed by the Service Provider. The Service Recipient shall access and use only those Systems of the Service Provider for which the Service Recipient has been expressly granted the right to access and use.
5.3.2 Personnel Access . The Service Recipient shall limit access to the Systems to those personnel who are specifically authorized to have such access, and to prevent unauthorized access, use, destruction, alteration or loss of information contained therein. The Service Recipient shall notify its own personnel of the restrictions set forth in this Section 5.3.2 and of the Security Regulations.
5.3.3 Unauthorized Access . If, at any time, the Service Recipient determines that any of its personnel have sought to circumvent, or have circumvented, the Security Regulations, that any unauthorized personnel have accessed the Systems or that any of its personnel have engaged in activities that may lead to the unauthorized access, use, destruction, alteration or loss of data, information or software, the Service Recipient shall promptly terminate such personnels access to the Systems and promptly notify the Service Provider. In addition, the Service Provider shall have the right to deny personnel of the Service Recipient access to its Systems upon notice to the Service Recipient (with such notice given, in any event, within one business day of such termination) in the event that the Service Provider reasonably believes that such personnel have engaged in any of the activities set forth above in this Section 5.3.3 or otherwise pose a security concern. Each Party shall reasonably cooperate with the other Party in investigating any apparent unauthorized access to the Systems.
ARTICLE 6
FEES AND PAYMENT
6.1 Fees . The fees for each of the Services (the Fees ) are as set forth in the Services Schedules and shall, during the first six (6) months after the Effective Date, be equal to the Service Providers actual direct cost to provide the Services, plus five percent (5%), and thereafter shall be equal to the Service Providers actual direct cost to provide the Services, plus ten percent (10%). All Fees are exclusive of any applicable Service Taxes (as defined below) (which shall be paid by the Service Recipient in accordance with Section 6.5 ). Either Party, in its capacity as the Service Recipient, may apply an offset against Fees solely for monies owed by the other Party pursuant to this Agreement.
6.2 Expenses . Unless otherwise expressly set forth on the applicable Services Schedule, the Fees are exclusive of expenses related to travel (including long-distance and local transportation, accommodation and meal expenses and other incidental expenses) by the Service Providers personnel or any Subcontractor in connection with performing the Services. All of the costs and expenses described in this Section 6.2 ( Expenses ) shall be charged by the
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Service Provider to the Service Recipient on a straight pass-through basis. For the avoidance of doubt, the Expenses described in this Section 6.2 shall be consistent with the Service Providers general approach with respect to such types of costs and expenses; provided , that with respect to any Service, the Service Recipients prior written approval shall be required to the extent that Expenses exceed fifteen percent (15%) of the Fees paid and payable to the Service Provider for such Service in any month.
6.3 Payment and Invoices . The Service Provider shall invoice the Service Recipient for all Fees and Expenses, in each case in arrears on a monthly basis. The Service Provider shall include with each invoice a reasonably detailed description of the Services performed, the Fees and Expenses charged, any Service Taxes collected, and available reasonable supporting documentation with respect to the foregoing including copies of any invoices of Subcontractors with respect to the Services performed. The Service Recipient shall pay each undisputed invoice in immediately available funds, in each case within forty five (45) days after receipt. Any payments owing to the Service Provider pursuant to this Agreement that are not paid within forty five (45) days after receipt of the applicable invoice shall bear interest at the rate of five percent (5%) per annum (or such lesser amount as shall be the maximum amount permitted by Law) from the due date until paid; provided , that the Service Recipient shall not be in default of this Agreement for failing to pay all or any portion of an invoice within forty five (45) days of receipt of such invoice if the Service Recipient reasonably disputes the unpaid portion of such invoice in accordance with Section 6.4 .
6.4 Billing Disputes . In the event that the Service Recipient disputes any invoice, the Service Recipient shall provide written notice of such dispute and the basis therefor to the Service Provider and pay the undisputed portion, if any, as provided in Section 6.3 . If there is a disputed amount, the Parties shall, in good faith, seek to resolve such dispute in accordance with the dispute resolution procedure set forth in Section 4.4 . The Service Recipient shall pay the Service Provider the unpaid portion then owed under any invoice promptly upon resolution of the dispute or completion of the dispute resolution procedures provided for herein.
6.5 Service Taxes; Withholding .
6.5.1 In addition to the amounts described in Section 6.1 , the Service Recipient shall pay, and hold the Service Provider harmless against, any sales, use, value added, transfer, service, service use, and other similar Taxes, which for the avoidance of doubt, shall not include any income, franchise or similar Taxes ( Service Taxes ) applicable to the provision of the Services. The Service Provider shall, or shall cause its Affiliates to, collect from the Service Recipient and remit any such Service Taxes to the extent required to do so by applicable Law.
6.5.2 The Service Provider shall cooperate with the Service Recipient and take any reasonably requested action in order to minimize any Service Taxes imposed on the sale of the Services provided by the Service Provider, including timely providing resale or other applicable Tax exemption certificates or other documentation necessary to support Tax exemptions. If the Service Provider (or any of its Affiliates) receives a refund of Service Taxes paid by the Service Recipient, it shall remit to the Service Recipient, within 30 days, the amount of such refund net of any Taxes incurred by the Service Provider (or any of its Affiliates) in connection with such refund. Each Party agrees to provide the other Party such information and
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data as reasonably requested from time to time, and to fully cooperate with the other Party, in connection with (a) the reporting of any Service Taxes payable pursuant to this Agreement, (b) any audit relating to any such Service Taxes, or (c) any assessment, refund, claim or proceeding relating to any such Service Taxes.
6.5.3 The Service Recipient or any applicable Affiliate of the Service Recipient, as the case may be, shall be entitled to deduct and withhold from any payment otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to such payment under applicable Law, and such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made; provided , however , that the Service Recipient shall reasonably cooperate with the Service Provider in obtaining any available exemption from or reduction of such withholding. The Service Recipient shall provide the Service Provider with reasonable evidence of payment to, or receipts from, the relevant Governmental Authority, if available, evidencing the payment of such Taxes.
6.6 Audits . During the Service Performance Period and for a period of six (6) months thereafter, the Service Provider shall keep and maintain materially complete and accurate records of any costs that it is entitled to charge to the Service Recipient hereunder, and shall allow, at the Service Recipients sole expense, a mutually agreed independent auditor, during business hours and no more than once, to inspect and make extracts or copies of such records solely for the purpose of ascertaining the correctness of such statements. If any such examination and audit shall disclose any overcharges or overpayment of ten per cent (10%) or more, the Service Provider shall (a) promptly refund to the Service Recipient the amount of any such overcharges or overpayment, and (b) pay the costs of such audit.
ARTICLE 7
FORCE MAJEURE
7.1 Force Majeure . Provided the Service Provider has in place commercially reasonable disaster recovery and business continuity measures intended to mitigate the effects of any of the following events, the Service Provider shall be excused from performing any Services in the event that war (whether declared or not), fire, explosion, earthquake, storm, flood, strike, riot, act of governmental authority, act of God, act of terror or sabotage, technology disruption to the extent beyond the reasonable control of the Service Provider or other contingency beyond the reasonable control of the Service Provider, or any failure of a Third Party to provide services necessary for the performance of the Services to the extent not caused by the Service Provider (each, a Force Majeure Event ), causes cessation or interruption of the Service Providers performance of such Services, for the duration of such Force Majeure Event. If the Service Provider is unable to provide any Services as a result of a Force Majeure Event: (a) the Service Provider shall promptly notify the Service Recipient and describe in reasonable detail the circumstances causing the inability to perform; (b) the Service Provider shall use commercially reasonable efforts to resume performance of its obligations hereunder with minimal delay; and (c) the Service Recipient shall be free to acquire such Services from an alternative source, at the Service Recipients sole cost and expense, and without liability to the Service Provider, for the period and to the extent reasonably necessitated by such non-performance. For the avoidance of doubt, the Service Recipient shall not be obligated to pay the Service Provider for Services with respect to the period during which such Services are not provided due to a Force Majeure Event.
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ARTICLE 8
TERM AND TERMINATION
8.1 Term .
8.1.1 Term of Services . The Service Provider shall provide each of the Services beginning on the Service Commencement Date for such Service set forth in the Services Schedule and continuing until the Service Termination Date for such Service set forth in the Services Schedule, unless extended or sooner terminated in accordance with the provisions of this Agreement. The period commencing on the first to occur of the Service Commencement Dates and ending on the last to expire or terminate of the Service Termination Dates is hereinafter referred to as the Service Performance Period .
8.1.2 Extension of Service Termination Date . The Service Recipient may request an extension of the Service Termination Date applicable to any Service by delivering a written request to the Service Provider not less than sixty (60) days prior to the applicable Service Termination Date; provided , however , that a Service Termination Date may only be extended pursuant to this Section 8.1.2 (a) if such extension would not result in any Liabilities payable by, attributable to or the responsibility of the Service Provider or (b) in the event such extension would result in Liabilities payable by, attributable to or the responsibility of the Service Provider, the Service Recipient shall have expressly agreed in writing to fully reimburse and indemnify the Service Provider with respect to such Liabilities. The Service Provider shall consider in good faith any request for the extension of a Service Termination Date pursuant to this Section 8.1.2 . If the Service Provider agrees, in its sole discretion, to such extension, the Parties shall (x) negotiate the terms of such extension, including the revised Service Termination Date, and (y) document the terms of such extension in an amendment to the applicable Services Schedule, and the Fees payable by the Service Recipient in respect of the applicable Service through such revised Service Termination Date shall be one hundred ten percent (110%) of the amount of the Fees payable in respect of the applicable Service during the period immediately preceding such extension
8.2 Termination .
8.2.1 Early Termination of Services . The Service Recipient may terminate any Service, in whole or in part, prior to the applicable Service Termination Date by delivering to the Service Provider advance written notice of such termination no later than thirty (30) days prior to the applicable Service Termination Date (unless the terms set forth in the applicable Services Schedule designate a longer advance notice period for termination of such Service, in which case the Service Recipient shall provide written notice in accordance with such terms). In the event of any such termination of any Service, in whole or in part, the Fees payable by the Service Recipient for such Service will be reduced to reflect the terminated Service or the portion thereof that is terminated, as the case may be. Notwithstanding the foregoing, no termination of any Service shall relieve the Service Recipient of any of its obligations hereunder to pay the Service Provider all applicable Fees and Expenses incurred prior to such termination.
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8.2.2 Termination for Breach . If either Party materially breaches any of its obligations under this Agreement and does not cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party, then the non-breaching Party may, at its option, terminate all, but not less than all, of the Services in the affected line of Services, or all Services in their entirety, by providing written notice of termination to the breaching Party, which termination shall be effective immediately or as of such later date as may be specified in the notice of termination.
8.2.3 Bankruptcy Termination . This Agreement may be terminated by either Party upon not less than thirty (30) days prior written notice if the other Party is declared insolvent or bankrupt, or makes an assignment for the benefit of creditors, or a receiver is appointed or any proceeding is demanded by, for or against the other under any provision of the federal bankruptcy Laws. Any termination of this Agreement pursuant to this Section 8.2.3 shall be without prejudice to any rights or obligations of the Parties accruing prior to such termination, including the right to payment of unpaid amounts owing for Services performed prior to termination.
8.2.4 General Termination . If not earlier terminated, this Agreement shall terminate on the expiration or termination of the last Service performed hereunder, and thereafter all rights and obligations hereunder shall be terminated, except for the payment by the Service Recipient of any Fees, Expenses and other costs due and payable hereunder, and except as otherwise provided in Section 10.3 .
8.3 Obligations on Termination . Notwithstanding anything herein to the contrary, in connection with the termination of any Service or Services in accordance with this Section 8.3 , (a) the Fees payable by the Service Recipient for such Service(s) will be reduced to reflect the terminated Service(s) or the portion thereof that is terminated, as the case may be; and (b) the Service Recipient shall pay to the Service Provider, within thirty (30) days following such termination, all Fees and Expenses payable pursuant to ARTICLE 6 through the date of such termination. In the event any Service is terminated prior to the applicable Service Termination Date, the Service Recipient shall be liable to the Service Provider for actual non-cancellable costs incurred by the Service Provider resulting from such termination, including any cancellation or similar costs payable to Third Parties by the Service Provider.
ARTICLE 9
LIMITATION ON LIABILITY; INDEMNIFICATION
9.1 Warranty Disclaimer . EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE), WITH RESPECT TO THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT.
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9.2 Cap on Direct Damages . Except for a Partys breach of its confidentiality obligations or such Partys fraud, gross negligence or intentional misconduct, under no circumstances shall the aggregate liability of such Party, its Affiliates and any of their respective representatives under this Agreement exceed the amount of fees paid and payable to it as Service Provider by the other Party as Service Recipient under the Agreement during the six (6) month period following the Effective Date.
9.3 Exclusion of Damages . EXCEPT FOR A PARTYS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR SUCH PARTYS FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, SUCH PARTY SHALL NOT HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER WITH RESPECT TO THE MATTERS CONTEMPLATED BY THIS AGREEMENT, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE) OR OTHERWISE, AT LAW OR IN EQUITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, DAMAGES CALCULATED ON MULTIPLES OF EARNINGS OR OPPORTUNITY COSTS, WHETHER FORESEEABLE OR NOT, WHICH IN ANY WAY ARISE OUT OF, RELATE TO OR ARE A CONSEQUENCE OF THE PERFORMANCE OR NONPERFORMANCE BY THE SERVICE PROVIDER, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES (OR ANY SUBCONTRACTOR PROVIDING THE APPLICABLE SERVICES UNDER THIS AGREEMENT) OR THE PROVISION OF, OR FAILURE TO PROVIDE, ANY SERVICES UNDER THIS AGREEMENT, INCLUDING FOR LOSS OF PROFITS, BUSINESS INTERRUPTIONS OR CLAIMS OF CUSTOMERS. EACH PARTY HEREBY WAIVES ON BEHALF OF ITSELF, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES ANY CLAIM FOR SUCH DAMAGES.
9.4 Indemnification .
9.4.1 By Service Provider . Without limiting the rights of the Service Recipient under any other Transaction Agreement, the Service Provider shall indemnify and hold harmless the Service Recipient, its Affiliates and their respective officers, directors, partners, principals, employees and agents (together with their respective successors and permitted assigns) from and against any and all assessments, losses, damages, costs, expenses, liabilities, judgments, awards, fines, sanctions, penalties, charges and amounts paid in settlement, including reasonable costs, fees and expenses of attorneys, accountants and other agents or representatives of any of them (collectively, Damages ) arising or resulting from the fraud, gross negligence or willful misconduct of the Service Provider or its Affiliates in connection with the performance of their obligations under this Agreement.
9.4.2 By Service Recipient . Without limiting the rights of the Service Provider under any other Transaction Agreement, the Service Recipient shall indemnify and hold harmless the Service Provider, its Affiliates and their respective officers, directors, partners, principals, employees and agents (together with their respective successors and permitted assigns) from and against any and all Damages arising or resulting from the fraud, gross negligence or willful misconduct of the Service Recipient in connection with the performance of its obligations under this Agreement.
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9.4.3 Procedure . A Party entitled to indemnification pursuant to this Section 9.4 (the Indemnified Party ) shall notify the other Party (the Indemnifying Party ) in writing of any claim, action or demand (a Claim ) for which the Indemnified Party intends to seek indemnification under this ARTICLE 9 . If the Indemnifying Party fails to assume the defense of such Claim within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required under the circumstances, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. Notice of any Claim shall be given promptly after the Indemnified Party becomes aware of the Claim, but no delay in giving such notice shall affect the Indemnified Partys right to indemnification hereunder except to the extent that the Indemnifying Partys ability to defend or settle such Claim is actually prejudiced by such delay. Notice of a Claim shall be accompanied by all information reasonably available to the Indemnified Party relevant to the investigation, assessment, defense and settlement of such Claim. The Indemnified Party shall, at the request and expense of the Indemnifying Party, take such actions as the Indemnifying Party may reasonably request in connection with the investigation, assessment, defense and settlement of any Claim.
9.4.4 For the avoidance of doubt, nothing in this ARTICLE 9 shall be deemed to eliminate or limit, in any respect, the Service Recipients obligations hereunder to make payment for any Fees, Expenses or other costs.
ARTICLE 10
GENERAL
10.1 Confidential Information . The rights and obligations under this Agreement are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in the Separation Agreement; provided , however , that to the extent any Confidential Information concerning or belonging to the Service Recipient or its Affiliates is disclosed to any member of the Service Providers Group in connection with providing Services under this Agreement, then such Confidential Information shall be used by the applicable member of the Service Providers Group only in connection with the provision of such services.
10.2 Relationship of the Parties . The Service Provider, in performance of its obligations under this Agreement, is acting as an independent contractor to the Service Recipient, and not as a partner, joint venture or agent, nor do the Parties intend to create by this Agreement an employer-employee relationship as between the Service Provider and the Service Recipient. Each of the Parties retains control over its respective personnel (including, as between the Parties, the exclusive right to select, hire, utilize and discharge its employees), and the employees of the Service Provider shall not be considered employees of the Service Recipient nor shall the employees of the Service Recipient be considered employees of the
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Service Provider. For the avoidance of doubt, nothing in this Agreement shall, and the provision of Services by the Service Provider pursuant to this Agreement shall not, (a) restrict the Service Providers ability to make any changes in its personnel, including its ability to terminate the employment of or reassign any Person providing any Service to the Service Recipient under this Agreement or (b) modify, terminate or otherwise affect the status of any Person employed by the Service Provider as an at-will employee, who shall remain an at-will employee of the Service Provider. Neither Party shall be bound by any representation, act or omission of the other Party. Neither Party has any right, power or authority to create any obligation, express or implied, on behalf of the other Party.
10.3 Survival . The provisions of Section 1.1 , Section 3.5 , ARTICLE 6 , SECTION 8.3 , ARTICLE 9 and this ARTICLE 10 shall survive termination or expiration of the Service Performance Period and remain in full force and effect in accordance with their applicable terms.
10.4 Schedules . The Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.
10.5 Complete Agreement; Construction . This Agreement, the Disclosure Letters (as defined in the Merger Agreement), the other Transaction Agreements and the Confidentiality Agreement constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. If there is a conflict between any provision of this Agreement and a provision in any of the other Transaction Agreements (other than the Separation Agreement or the Merger Agreement), the provision of this Agreement shall control unless (i) with respect to any Ancillary Agreement other than the Tax Matters Agreement, as specifically provided otherwise in this Agreement or in such other Ancillary Agreement, (ii) with respect to the Tax Matters Agreement, the provision relates to matters addressed by the Tax Matters Agreement, in which case the Tax Matters Agreement shall control, or (iii) with respect to the Employee Matters Agreement, the provision relates to matters addressed by the Employee Matters Agreement, in which case the Employee Matters Agreement shall control. If there is a conflict between any provision of this Agreement and a provision in the Separation Agreement, the provision in the Separation Agreement shall control, and if there is a conflict between any provision of this Agreement and a provision in the Merger Agreement, the provision of the Merger Agreement shall control. Neither this Agreement nor any Ancillary Agreement shall govern Tax matters (including any administrative, procedural, and related matters thereto, Tax Matters ), except to the extent expressly provided herein or therein. Tax Matters shall be exclusively governed by the Tax Matters Agreement.
10.6 Governing Law . This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided , however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties
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hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with Section 10.9 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
10.7 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.7.
10.8 Headings . The section headings hereof are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.
10.9 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by facsimile or email (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.9 ):
If to Citrix:
Citrix Systems, Inc.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile: (954) 267-3101
Attention: General Counsel
with a copy (which shall not constitute notice) to:
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Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street, 23rd Floor
Boston, MA 02116
Facsimile: (617) 573-4822
Attention: Margaret A. Brown
If to SpinCo:
LogMeIn, Inc.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attention: Chief Financial Officer
General Counsel
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attention: John H. Chory
Bradley C. Faris
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
10.10 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
10.11 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
10.12 Third Party Beneficiaries . Except (i) as provided in ARTICLE 9 relating to Indemnified Parties and (ii) as specifically provided in any Transaction Agreement, this Agreement shall be binding upon and inure solely to the benefit of, and be enforceable by, only the Parties and their respective successors and permitted assigns, and nothing herein,
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express or implied, is intended to, or shall, confer upon any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.
10.13 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this Section 10.13 shall be null and void.
10.14 Amendment and Waivers .
10.14.1 This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 10.14.2 .
10.14.2 Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Party; (b) waive any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered by the other Party pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Party or conditions to such obligations contained herein. Any such waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
10.15 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in pdf form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
10.16 Non-Recourse . No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of either Party or their respective Affiliates shall have any liability for any obligations or liabilities of such Party under this Agreement or for any claims based on, in respect of, or by reason of, the transactions contemplated by this Agreement.
10.17 Effect if Distribution Does Not Occur . If the Distribution does not occur, then all actions and events that are, under this Agreement, to be taken or occur shall not be taken or occur except to the extent specifically agreed by the Parties.
[ Signature Page Follows ]
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IN WITNESS WHEREOF , each of the Parties hereto has caused this Agreement to be executed by an authorized representative as of the Effective Date.
CITRIX SYSTEMS, INC. | ||||
By: |
/s/ David J. Henshall |
|||
Name: | David J. Henshall | |||
Title: |
Executive Vice President, Chief Operating Officer and Chief Financial Officer |
|||
GETGO, INC. | ||||
By: |
/s/ Antonio G. Gomes |
|||
Name: | Antonio G. Gomes | |||
Title: | Secretary |
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IN WITNESS WHEREOF , each of the Parties hereto has caused this Agreement to be executed by an authorized representative as of the Effective Date.
CITRIX SYSTEMS IRELAND LTD | ||||
By: |
/s/ Brian Shytle |
|||
Name: | Brian Shytle | |||
Title: | Director | |||
CITRIX SYSTEMS UK LTD | ||||
By: |
/s/ Brian Shytle |
|||
Name: | Brian Shytle | |||
Title: | Director | |||
CITRIX SYSTEMS NETHERLANDS BV | ||||
By: |
/s/ Brian Shytle |
|||
Name: | Brian Shytle | |||
Title: | Director | |||
CITRIX SYSTEMS GMBH (GERMANY) | ||||
By: |
/s/ Brian Shytle |
|||
Name: | Brian Shytle | |||
Title: | Director | |||
CITRIX SYSTEMS ASIA PACIFIC PTY LTD | ||||
By: |
/s/ George Moyles |
|||
Name: | George Moyles | |||
Title: | Director |
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IN WITNESS WHEREOF , each of the Parties hereto has caused this Agreement to be executed by an authorized representative as of the Effective Date.
GETGO TECHNOLOGIES IRELAND LIMITED | ||||||
By: |
/s/ Christopher Hylen |
|||||
Name: | Christopher Hylen | |||||
Title: | Director | |||||
GETGO TECHNOLOGIES UK LIMITED | ||||||
By: |
/s/ Christopher Hylen |
|||||
Name: | Christopher Hylen | |||||
Title: | Director | |||||
GETGO GERMANY GMBH | ||||||
By: |
/s/ Caoimhe Ni Ghiosain |
|||||
Name: | Caoimhe Ni Ghiosain | |||||
Title: | Director | |||||
GETGO AUS PTY LTD. | ||||||
By: |
/s/ Christopher Hylen |
|||||
Name: | Christopher Hylen | |||||
Title: | Director |
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Exhibit 10.1
EXECUTION VERSION
LogMeIn, Inc.
320 Summer Street
Boston, Massachusetts 02210
January 31, 2017
Elliott Associates, L.P.
Elliott International, L.P.
Elliott International Capital Advisors Inc.
40 West 57th Street
New York, NY 10019
Gentlemen:
This letter (this Agreement ) constitutes the agreement between LogMeIn, Inc., a Delaware corporation (the Company ), Elliott Associates, L.P., a Delaware limited partnership ( Elliott Associates ), Elliott International, L.P., a Cayman Islands limited partnership ( Elliott International ), and Elliott International Capital Advisors Inc., a Delaware corporation (together with Elliott Associates and Elliott International, the Investors ), with respect to the matters set forth below. Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in paragraph 8 below.
1. Effective upon the closing of the transactions contemplated by the Agreement and Plan of Merger (the Merger Agreement ), by and among Citrix Systems, Inc., a Delaware corporation ( Carbon ), GetGo, Inc., a Delaware corporation and wholly owned subsidiary of Carbon ( SpinCo ), the Company, and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of the Company ( Merger Sub ), dated July 26, 2016, Jesse Cohn shall be appointed as one of the members of the Board of Directors of the Company (the Board ) designated by Carbon pursuant to Section 2.07 of the Merger Agreement (the Investor Designee ). The Investor Designee shall be appointed as a Class III Director with a term expiring at the Companys 2018 Annual Meeting of Stockholders.
2. In connection with the Companys 2017 Annual Meeting of Stockholders (and any adjournments or postponements thereof) (the 2017 Annual Meeting ), so long as the Investor Designee has been nominated by the Board for re-election as a director or continues to serve as a director in a class whose term will not expire at such meeting, and at each subsequent Annual Meeting of Stockholders of the Company (and any adjournments or postponements thereof) at which the Investor Designee has been nominated by the Board for re-election as a director or continues to serve as a director in a class whose term will not expire at such meeting, the Investors will cause to be present for quorum purposes and vote or cause to be voted all Company common stock beneficially owned by them or their controlling or controlled Affiliates and which they or such controlling or controlled Affiliates are entitled to vote on the record date for the 2017 Annual Meeting or such subsequent Annual Meeting of Stockholders in favor of (A) the election of directors nominated by the Board and (B) otherwise in accordance with the Boards recommendation on any non-Extraordinary Transaction related proposals; provided, that, notwithstanding anything to the contrary, the obligations of the Investor in this paragraph 2 shall terminate automatically if the Investor Designee does not accept such nomination by the Board for re-election as a director, the Investor Designee resigns from the Board or a Company Event (as defined below) occurs.
3. The parties hereto acknowledge that the Investor Designee, upon election to the Board, will serve as a member of the Board and will be governed by the same protections and obligations regarding confidentiality, conflicts of interest, related party transactions, fiduciary duties, codes of conduct, trading and disclosure policies, director resignation policy, and other governance guidelines and policies of the Company (including, but not limited to, the policies with respect to management being responsible for managing communications with external constituencies) as other directors (collectively, Company Policies ), and shall be required to preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees, and shall have the same rights and benefits, including with respect to insurance, indemnification, compensation and fees, as are applicable to all independent directors of the Company. The Company represents and warrants that: (i) all Company Policies currently in effect are publicly available on the Companys website or described in its proxy statement filed with the Securities and Exchange Commission (the SEC ) on April 8, 2016 or have otherwise been provided to the Investors, and such Company Policies will not be amended prior to the appointment of the Investor Designee and (ii) during the Restricted Period, any changes to the Company Policies, or new Company Policies, will be adopted in good faith and not for the purpose of undermining or conflicting with the arrangements contemplated hereby.
4. The Company will take all action necessary to appoint the Investor Designee as a member of the Operating Committee (as defined in the Merger Agreement) upon the formation of such committee in accordance with the terms of the Merger Agreement.
5. From the date of this Agreement until the Expiration Date or until such earlier time as the restrictions in this paragraph 5 terminate as provided herein (such period, the Restricted Period ), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the Restricted Persons ) not to, directly or indirectly, absent prior express written invitation or authorization by the Board:
(a) engage in any solicitation (as such term is used in the proxy rules of the SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a participant (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage or advise any other Person or knowingly assist any Person in so encouraging or advising any Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement or advice that is consistent with Company managements recommendation in connection with such matter);
(c) form, join or act in concert with any group as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act ), with respect to any Voting Securities, other than solely with other Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
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(d) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities or assets of the Company, or rights or options to acquire any Voting Securities or assets of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case if such acquisition or transaction would result in the Investors having beneficial ownership (voting power or economic exposure) of more than 9.9% of the Companys outstanding common stock;
(e) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying common stock of the Company held by the Investors to any Third Party;
(f) make or in any way participate, directly or indirectly, in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or its or their securities or assets (each, an Extraordinary Transaction ) (it being understood that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board); or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any of the types of matters set forth above in this paragraph;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved by the Board;
(h) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board or (iii) conduct a referendum of stockholders;
(i) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(j) make any request for stock list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(k) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization or dividend policy of the Company, (iii) any other material change in the Companys management, business or corporate structure, (iv) any waiver,
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amendment or modification to the Companys Certificate of Incorporation or Bylaws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 5; provided, however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in the correspondence between the Company and the Restricted Persons prior to the date hereof, or (D) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(m) enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investors are prohibited from taking pursuant to this paragraph 5; or
(n) make any request or submit any proposal to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or proposal;
provided, that the restrictions in this paragraph 5 shall terminate automatically upon the earliest of (i) as a non-exclusive remedy for any such breach, upon five (5) business days prior written notice by the Investors following a material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Investor Designee to the Board in accordance with paragraph 1 or to the Operating Committee in accordance with paragraph 4) if such breach has not been cured within such notice period, provided that the Investors are not in material breach of this Agreement at the time such notice is given, (ii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, (iii) the commencement of any tender or exchange offer (by a person other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a stop, look and listen communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Companys stockholders reject such tender or exchange offer, (iv) such time as the Company issues a preliminary proxy statement, definitive proxy statement or other proxy materials in connection with the 2017 Annual Meeting that are inconsistent with the terms of this Agreement or (v) the adoption by the Board of any amendment to the Certificate of Incorporation or Bylaws of the Company that would reasonably be expected to substantially impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting
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of Stockholders (any of events described in clauses (i) through (v), a Company Event ). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 5 shall prohibit or restrict the Investor Designee from exercising his rights and fiduciary duties as a director of the Company or restrict his discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company.
6. During the Restricted Period, the Company, the Investors and the Investor Designee shall each refrain from making, and shall cause their respective Affiliates and its and their respective principals, directors, members, general partners, officers and employees not to make or cause to be made any statement or announcement including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames, slanders, impugns or is reasonably likely to damage the reputation of, (a) in the case of statements or announcements by any of the Investors: the Company or any of its Affiliates, subsidiaries or advisors, or any of its or their respective current or former officers, directors or employees (including, without limitation, any statements or announcements regarding the Companys strategy, operations, performance, products or services), and (b) in the case of statements or announcements by the Company: the Investors and the Investors advisors, their respective employees or any person who has served as an employee of the Investors and the Investors advisors. The foregoing shall not restrict the ability of any person to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over the party from whom information is sought.
7. The Company hereby agrees that the Investor Designee may provide confidential information of the Company to the Investors and their Affiliates subject to, and solely in accordance with the terms of, a confidentiality agreement in the form attached hereto as Exhibit A (which the Investors agree to execute and deliver to the Company simultaneously with the Investors execution and delivery of this Agreement). The Investors and the Investor Designee hereby acknowledge that they and their Affiliates are aware that United States securities laws may restrict any person who has material, non-public information about a company from purchasing or selling any securities of such company while in possession of such information. Accordingly, the Investors shall, and shall cause their Affiliates to, purchase and sell securities of the Company only in compliance with the Companys insider trading policy, a copy of which has been provided to the Investors.
8. As used in this Agreement, the term (a) Affiliate shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act and shall include Persons who become Affiliates of any Person subsequent to the date of this Agreement; provided that Affiliate shall not include any person that is a publicly held concern and is otherwise an Affiliate solely by reason of the fact that an employee or principal of the Investor serves as a member of the board of directors or similar governing body of such concern; (b) beneficially own , beneficially owned and beneficial ownership shall have the meaning set forth in Rules 13d-3 and 13d-5(b)(l) promulgated under the Exchange Act and shall include any other economic exposure to Company common stock, including through any swap or other derivative transaction, that gives a Person the economic equivalent of ownership of Company common stock, including, without limitation, the notional number of shares subject to derivative agreements in the form of cash-settled swaps; (c) business day shall mean any day other than a Saturday, Sunday or a day on
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which the Federal Reserve Bank of New York is closed; (d) Expiration Date means the first anniversary of the date of this Agreement; provided that, if the Investor Designee remains a director of the Company as of such anniversary date, then the Expiration Date shall be automatically extended until the earlier of (i) the date that the Board fails to re-nominate the Investor Designee as a director of the Company in connection with an Annual Meeting of Stockholders at which the Investor Designees term of office expires or (ii) the date that the Investor Designee resigns as a director of the Company (for the avoidance of doubt, it is understood and agreed that the Board shall have no obligation to re-nominate the Investor Designee as a director of the Company following the 2018 Annual Meeting); (e) Person shall be interpreted broadly to include, among others, any individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of any kind or structure; (f) Third Party means any Person that is not a party to this Agreement or an Affiliate thereof, a member of the Board, a director or officer of the Company, or legal counsel to any party to this Agreement; and (g) Voting Securities shall mean the shares of common stock of the Company and any other securities of the Company entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for, such shares or other securities, whether or not subject to the passage of time or other contingencies.
9. Each of the Investors, severally and not jointly, represents and warrants that (a) this Agreement has been duly authorized, executed and delivered by it and is a valid and binding obligation of such Investor, enforceable against it in accordance with its terms; (b) neither it nor any of its Affiliates has or will during the Restricted Period have, any agreement, arrangement or understanding, written or oral, with any member of the Board (other than the Investor Designee) pursuant to which such individual has been or will be compensated for his or her service as a director on, or nominee for election to, the Board; and (c) as of the date of this Agreement, (i) the Investors, together with all of their respective Affiliates, as of the Closing of the Merger (as defined in the Merger Agreement) will collectively beneficially own, an aggregate of 1,552,878 shares of Voting Securities and (ii) except as previously disclosed in writing to the Company prior to the execution of this Agreement, none of the Investors nor any of their respective Affiliates, is a party to any swap or hedging transactions or other derivative agreements of any nature with respect to the Voting Securities.
10. The Company represents and warrants that (a) this Agreement has been duly authorized, executed and delivered by it and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms; (b) the execution and delivery of this Agreement does not require the approval of the stockholders of the Company; and (c) the execution and delivery of this Agreement does not and will not violate any law, any order of any court or other agency of government, the Companys Certificate of Incorporation or Bylaws, each as amended from time to time, or any provision of any agreement or other instrument to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such agreement or other instrument, or result in the creation or imposition of, or give rise to, any material lien, charge, restriction, claim, encumbrance or adverse penalty of any nature whatsoever pursuant to any such indenture, agreement or other instrument.
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11. The Company and each of the Investors each acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by it and that, in the event of any breach or threatened breach hereof, (a) the non-breaching party will be entitled to seek injunctive and other equitable relief, without proof of actual damages; (b) the breaching party will not plead in defense thereto that there would be an adequate remedy at law; and (c) the breaching party agrees to waive any applicable right or requirement that a bond be posted by the non-breaching party. Such remedies will not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.
12. This Agreement (including its exhibits) constitutes the only agreement between the Investors and the Company with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No party may assign or otherwise transfer either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party. Any purported transfer requiring consent without such consent shall be void. No amendment, modification, supplement or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party affected thereby, and then only in the specific instance and for the specific purpose stated therein. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
13. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. The parties further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the purposes of such invalid or unenforceable provision.
14. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Each of the Investors and the Company (a) irrevocably and unconditionally consents to the personal jurisdiction and venue of the federal or state courts located in Wilmington, Delaware; (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (c) agrees that it shall not bring any action relating to this Agreement or otherwise in any court other than such courts; and (d) waives any claim of improper venue or any claim that those courts are an inconvenient forum. The parties agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in paragraph 20 or in such other manner as may be permitted by applicable law, shall be valid and sufficient service thereof. Each of the parties, after consulting or having had the opportunity to consult with counsel, knowingly, voluntarily and intentionally waives any right that such party may have to a trial by jury in any litigation based upon or arising out of this Agreement or any related instrument or agreement, or
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any of the transactions contemplated thereby, or any course of conduct, dealing, statements (whether oral or written), or actions of any of them. No party shall seek to consolidate, by counterclaim or otherwise, any action in which a jury trial has been waived with any other action in which a jury trial cannot be or has not been waived.
15. This Agreement is solely for the benefit of the parties and is not enforceable by any other Person.
16. All notices, consents, requests, instructions, approvals and other communications provided for herein, and all legal process in regard hereto, will be in writing and will be deemed validly given, made or served when delivered in person, by electronic mail, by overnight courier or two business days after being sent by registered or certified mail (postage prepaid, return receipt requested) as follows:
If to the Company to:
LogMeIn, Inc.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attn: Chief Financial Officer
General Counsel
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attn: John H. Chory
Bradley C. Faris
If to the Investors:
Elliott Associates, L.P.
Elliott International, L.P.
Elliott International Capital Advisors Inc.
40 West 57th Street
New York, NY 10019
Attn: Jesse Cohn
email: jcohn@elliottmgmt.com
with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attn: Richard J. Birns, Esq.
email: rbirns@gibsondunn.com
8
At any time, any party may, by notice given in accordance with this paragraph to the other party, provide updated information for notices hereunder.
17. All attorneys fees, costs and expenses incurred in connection with this Agreement and all matters related hereto will be paid by the party incurring such fees, costs or expenses.
18. Each of the parties acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties, and any controversy over interpretations of this Agreement shall be decided without regard to events of drafting or preparation.
19. This Agreement may be executed by the parties in separate counterparts (including by fax, jpeg, .gif .bmp and .pdf), each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument.
[Signature page follows]
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Very truly yours, | ||||
LOGMEIN, INC. | ||||
By: |
/s/ William R. Wagner |
|||
Name: | William R. Wagner | |||
Title: | President and Chief Executive Officer |
[ Signature Page to Letter Agreement ]
Exhibit A
Confidentiality Agreement
PERSONAL AND CONFIDENTIAL
January 31, 2017
Elliott Associates, L.P.
Elliott International, L.P.
Elliott International Capital Advisors Inc.
40 West 57th Street
New York, NY 10019
Ladies and Gentlemen:
This letter agreement shall become effective upon the appointment of the Investor Designee to the Board of Directors (the Board ) of LogMeIn, Inc. (the Company ) pursuant to the other letter agreement, dated as of the date hereof, between the Company and you (the Cooperation Agreement ). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Cooperation Agreement. Subject to the terms of, and in accordance with, this letter agreement, you and, subject to the restrictions in paragraph 1, your Representatives and Affiliates, may receive certain information about the Company and its subsidiaries, divisions and Affiliates from the Investor Designee that is confidential and proprietary and the disclosure of which could harm the Company and its subsidiaries. You understand and agree that disclosure of any such information by the Investor Designee shall be subject in all cases to his fiduciary duties to the Company and its stockholders and the Company Policies. Without limiting the generality of the foregoing, it is understood and agreed that the Investor Designee shall not disclose to you or your Representatives or Affiliates (i) any information regarding the deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or members of the Companys management (which the parties agree shall not include factual information regarding the Company and its subsidiaries, divisions and Affiliates), (ii) any confidential or proprietary information of any third party in the possession of the Company and its subsidiaries that either (x) is identified as such to the Investor Designee by or on behalf of the Company or (y) as to which it is reasonably apparent that the Company or any of its subsidiaries is obligated by a contractual, legal or fiduciary obligation prohibiting disclosure or (iii) any information that may constitute waiver of the Companys or any of its subsidiaries attorney-client privilege or attorney work-product privilege (both with respect to internal or external legal counsel) that is identified as such to the Investor Designee by or on behalf of the Company.
As a condition of your being furnished such information, you agree to treat any information, whether written or oral, concerning the Company or any of its subsidiaries, divisions or Affiliates that is furnished to you by or on behalf of the Investor Designee (herein collectively referred to as the Confidential Information ) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term Confidential Information includes, without limitation, all notes, analyses, data or other documents furnished to you or your Affiliates or Representatives or prepared by you or your Affiliates or Representatives to the extent such materials reflect or are based upon, in whole or in part, the Confidential Information. The term Confidential Information does not include information that (a) is or becomes available to you or the Investor Designee on a nonconfidential basis from a
source other than the Company or its Affiliates or representatives; provided that such source is not known by you or the Investor Designee to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives or Affiliates in violation of this letter agreement, or (c) has been or is independently developed by you or your Representatives or Affiliates without the use of the Confidential Information or in violation of the terms of this letter agreement. For purposes of this letter agreement, the term Representatives shall include your and your Affiliates directors, officers, employees and attorneys.
1. You hereby agree that the Confidential Information will be kept confidential and used solely for the purpose of monitoring and evaluating your investment in the Company; provided, however, that the Confidential Information may be disclosed (i) to your Affiliates and any of your Representatives who need to know such information for the sole purpose of advising you on your investment in the Company, (ii) in accordance with paragraph 3 of this letter agreement, or (iii) as the Company may otherwise consent in writing. All such Affiliates and Representatives shall (A) be informed by you of the confidential nature of the Confidential Information, (B) agree to keep the Confidential Information strictly confidential, and (C) be advised of the terms of this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates or Representatives as if they were party hereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and Representatives with respect to such breach).
2. You hereby acknowledge that you, your Affiliates and your Representatives are aware that the Confidential Information may contain material, non-public information about the Company, and that the U.S. securities laws restrict any person who has material, non-public information about a company from purchasing or selling any securities of such company while in possession of such information, and further acknowledge your obligations and those of your Affiliates and Representatives under Section 7 of the Cooperation Agreement.
3. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Affiliates or Representatives receive a request or are required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an External Demand ) or otherwise pursuant to applicable law, regulation or the rules of any national securities exchange (as determined based on advice of outside legal counsel) to disclose all or any part of the Confidential Information, agree to, to the extent permitted by applicable law, (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) in the case of any External Demand, assist the Company, at the Companys request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case may be, may disclose only that portion of the Confidential Information which you or your Affiliates or Representatives are advised by
2
counsel is legally required to be disclosed and to the extent you or your Affiliates or Representatives are advised by counsel is legally required, and, in the case of any External Demand, you or your Affiliates or Representatives shall, at the Companys request and expense, exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information, and (ii) you or your Affiliates or Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by you or your Affiliates or Representatives in violation of this letter agreement. Notwithstanding the foregoing, except in the case of an External Demand, you and your Affiliates and Representatives may disclose Confidential Information pursuant to this paragraph 3 if but only if such disclosure requirement does not arise from a breach of paragraph 9 of the Cooperation Agreement. For the avoidance of doubt, it is understood and agreed that there shall be no applicable law, regulation or rule requiring you or your Affiliates or Representatives to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, you or your Affiliates or Representatives would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or your Affiliates or Representatives would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.
4. Upon the Companys demand, you shall either promptly (at your option) (a) destroy the Confidential Information and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement, provided that (i) you and your Affiliates and Representatives shall be permitted to retain Confidential Information to the extent necessary to comply with applicable law or such persons document retention policies designed to ensure compliance with applicable law and (ii) the foregoing shall not require the deletion of Confidential Information from computer archives maintained in the ordinary course (provided that you and your Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder with respect to such Confidential Information for such period of time as you and such Affiliates or Representatives retain such Confidential Information).
5. You acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by you or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its reasonable best efforts to cause its Affiliates to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
6. You agree that (a) none of the Company or their respective Affiliates or representatives shall have any liability to you or any of your Affiliates or Representatives resulting from the selection, use or content of the Confidential Information by you or your Affiliates or Representatives and (b) none of the Company or their respective Affiliates or representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information. This letter agreement shall not create any
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obligation on the part of the Company or any of its subsidiaries, Affiliates or representatives to provide you or your Affiliates or Representatives with any Confidential Information, nor shall it entitle you or your Affiliates or Representatives (other than the Investor Designee in his capacity as a director of the Company) to participate in any Board or committee meetings. All Confidential Information shall remain the property of the Company and its subsidiaries. Neither you nor any of your Affiliates or Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any rights with respect thereto, all of which rights shall remain exclusively with the Company and its subsidiaries.
7. No failure or delay by any party or any of its representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be effective, unless in writing and signed by the parties.
8. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
9. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit or proceeding related thereto except in such courts.
10. This letter agreement and the Cooperation Agreement (including the exhibits thereto) contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersedes all prior or contemporaneous agreements or understandings, whether written or oral. This letter agreement may be amended only by an agreement in writing executed by the parties hereto.
11. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
12. Except as otherwise set forth herein, this letter agreement shall terminate three (3) years from the date on which the Investor Designee ceases to be a director of the Company; provided that you and your Affiliates shall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for such longer time as such information constitutes a trade secret of the Company or any of its subsidiaries under applicable law; and provided further that any liability for breach of this letter agreement prior to such termination shall survive such termination.
[Remainder of the page intentionally left blank]
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Very truly yours, | ||
LOGMEIN, INC. | ||
By: |
|
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Name: | ||
Title: | ||
Confirmed and Agreed to: | ||
ELLIOTT ASSOCIATES, L.P. | ||
By: Elliott Capital Advisors, L.P., its General Partner |
||
By: Braxton Associates, Inc., its General Partner |
||
By: |
|
|
Name: | ||
Title: | ||
ELLIOTT INTERNATIONAL, L.P. | ||
By: Elliott International Capital Advisors Inc., as Attorney-in-Fact |
||
By: |
|
|
Name: | ||
Title: | ||
ELLIOTT INTERNATIONAL CAPITAL ADVISORS INC. | ||
By: |
|
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Name: | ||
Title: |
[ Signature Page to Confidentiality Agreement ]
Exhibit 10.2
Execution Version
AMENDED & RESTATED CREDIT AGREEMENT
dated as of
February 1, 2017
among
LOGMEIN, INC.,
as the Borrower,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
JPMORGAN CHASE BANK, N.A.,
as Joint Bookrunner and Joint Lead Arranger,
and
Wells Fargo Securities, LLC, and RBC Capital Markets,
as Joint Lead Arrangers, Joint Bookrunners and Syndication Agents,
and
Silicon Valley Bank, Citizens Bank, N.A., Bank of America, N.A. and
SunTrust Bank, as Documentation Agents.
TABLE OF CONTENTS
ARTICLE I. Definitions |
2 | |||||
SECTION 1.01 |
Defined Terms | 2 | ||||
SECTION 1.02 |
Classification of Loans and Borrowings | 31 | ||||
SECTION 1.03 |
Terms Generally | 31 | ||||
SECTION 1.04 |
Accounting Terms; GAAP | 32 | ||||
ARTICLE II. The Credits |
32 | |||||
SECTION 2.01 |
Revolving Commitments | 32 | ||||
SECTION 2.02 |
Loans and Borrowings | 32 | ||||
SECTION 2.03 |
Requests for Revolving Borrowings | 33 | ||||
SECTION 2.04 |
Determination of Dollar Amounts | 34 | ||||
SECTION 2.05 |
[Reserved.] | 35 | ||||
SECTION 2.06 |
Letters of Credit | 35 | ||||
SECTION 2.07 |
Funding of Borrowings | 39 | ||||
SECTION 2.08 |
Interest Elections | 40 | ||||
SECTION 2.09 |
Termination and Reduction of Revolving Commitments | 41 | ||||
SECTION 2.10 |
Repayment of Loans; Evidence of Debt | 42 | ||||
SECTION 2.11 |
Prepayment of Loans | 43 | ||||
SECTION 2.12 |
Fees | 44 | ||||
SECTION 2.13 |
Interest | 45 | ||||
SECTION 2.14 |
Alternate Rate of Interest | 46 | ||||
SECTION 2.15 |
Increased Costs | 47 | ||||
SECTION 2.16 |
Break Funding Payments | 48 | ||||
SECTION 2.17 |
Taxes; Payments Free of Taxes | 49 | ||||
SECTION 2.18 |
Payments Generally; Pro Rata Treatment; Sharing of Set-offs | 53 | ||||
SECTION 2.19 |
Mitigation Obligations; Replacement of Lenders | 56 | ||||
SECTION 2.20 |
Defaulting Lenders | 57 | ||||
SECTION 2.21 |
Expansion Option; Incremental Facilities | 58 | ||||
SECTION 2.22 |
Judgment Currency | 61 | ||||
ARTICLE III. Representations and Warranties |
61 | |||||
SECTION 3.01 |
Organization; Powers | 61 | ||||
SECTION 3.02 |
Authorization; Enforceability | 61 | ||||
SECTION 3.03 |
Governmental Approvals; No Conflicts | 62 | ||||
SECTION 3.04 |
Financial Condition; No Material Adverse Change | 62 | ||||
SECTION 3.05 |
Properties | 62 | ||||
SECTION 3.06 |
Litigation and Environmental Matters | 62 | ||||
SECTION 3.07 |
Compliance with Laws and Agreements | 63 | ||||
SECTION 3.08 |
Investment Company Status | 63 | ||||
SECTION 3.09 |
Taxes | 63 | ||||
SECTION 3.10 |
ERISA | 63 | ||||
SECTION 3.11 |
Disclosure | 63 | ||||
SECTION 3.12 |
Anti-Corruption Laws and Sanctions | 64 | ||||
SECTION 3.13 |
Subsidiaries | 64 | ||||
SECTION 3.14 |
Federal Regulations | 64 | ||||
SECTION 3.15 |
Security Interest in Collateral | 64 |
SECTION 3.16 |
Employment Matters | 65 | ||||
SECTION 3.17 |
No Default | 65 | ||||
SECTION 3.18 |
Reserved | 65 | ||||
SECTION 3.19 |
No Burdensome Restrictions | 65 | ||||
SECTION 3.20 |
EEA Financial Institutions | 65 | ||||
ARTICLE IV. Conditions |
65 | |||||
SECTION 4.01 |
Effective Date | 65 | ||||
SECTION 4.02 |
Each Credit Event | 68 | ||||
ARTICLE V. Affirmative Covenants |
68 | |||||
SECTION 5.01 |
Financial Statements; Ratings Change and Other Information | 68 | ||||
SECTION 5.02 |
Notices of Material Events | 69 | ||||
SECTION 5.03 |
Existence; Conduct of Business | 70 | ||||
SECTION 5.04 |
Payment of Obligations | 70 | ||||
SECTION 5.05 |
Maintenance of Properties; Insurance | 70 | ||||
SECTION 5.06 |
Books and Records; Inspection Rights | 71 | ||||
SECTION 5.07 |
Compliance with Laws | 71 | ||||
SECTION 5.08 |
Use of Proceeds and Letters of Credit | 71 | ||||
SECTION 5.09 |
Additional Borrowers; Removal of Borrowers | 71 | ||||
SECTION 5.10 |
Additional Subsidiaries | 73 | ||||
SECTION 5.11 |
Additional Collateral; Further Assurances | 74 | ||||
SECTION 5.12 |
Status of Obligations | 74 | ||||
ARTICLE VI. Negative Covenants |
74 | |||||
SECTION 6.01 |
Indebtedness | 75 | ||||
SECTION 6.02 |
Liens | 77 | ||||
SECTION 6.03 |
Fundamental Changes, and Conduct of Business | 79 | ||||
SECTION 6.04 |
Investments, Loans, Advances, Guarantees and Acquisitions | 80 | ||||
SECTION 6.05 |
Swap Agreements | 81 | ||||
SECTION 6.06 |
Restricted Payments | 81 | ||||
SECTION 6.07 |
Transactions with Affiliates; Sale and Leaseback Transactions | 82 | ||||
SECTION 6.08 |
Restrictive Agreements | 82 | ||||
SECTION 6.09 |
Prepayments, Etc., of Permitted Unsecured Debt | 83 | ||||
SECTION 6.10 |
Financial Covenants | 83 | ||||
ARTICLE VII. Events of Default |
84 | |||||
ARTICLE VIII. The Administrative Agent |
86 | |||||
ARTICLE IX. Miscellaneous |
90 | |||||
SECTION 9.01 |
Notices | 90 | ||||
SECTION 9.02 |
Waivers; Amendments | 92 | ||||
SECTION 9.03 |
Expenses; Indemnity; Damage Waiver | 94 | ||||
SECTION 9.04 |
Successors and Assigns | 96 | ||||
SECTION 9.05 |
Survival | 100 | ||||
SECTION 9.06 |
Counterparts; Integration; Effectiveness; Electronic Execution | 101 | ||||
SECTION 9.07 |
Severability | 101 | ||||
SECTION 9.08 |
Right of Setoff | 101 | ||||
SECTION 9.09 |
Governing Law; Jurisdiction; Consent to Service of Process | 102 | ||||
SECTION 9.10 |
WAIVER OF JURY TRIAL | 102 | ||||
SECTION 9.11 |
Headings | 102 |
SECTION 9.12 |
Confidentiality | 103 | ||||
SECTION 9.13 |
Material Non-Public Information | 103 | ||||
SECTION 9.14 |
Authorization to Distribute Certain Materials to Public-Siders | 104 | ||||
SECTION 9.15 |
Interest Rate Limitation | 104 | ||||
SECTION 9.16 |
USA PATRIOT Act | 104 | ||||
SECTION 9.17 |
Appointment for Perfection | 105 | ||||
SECTION 9.18 |
Liability for Obligations | 105 | ||||
SECTION 9.19 |
Non-U.S Collateral Documents | 105 | ||||
SECTION 9.20 |
No Fiduciary Duty, etc | 105 | ||||
SECTION 9.21 |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 106 | ||||
SECTION 9.22 |
Existing Credit Agreement Amended and Restated | 107 | ||||
ARTICLE X. BORROWER GUARANTEES |
107 | |||||
SECTION 10.01 |
Guarantee of Domestic Borrowers | 107 | ||||
SECTION 10.02 |
Guarantee of Foreign Borrowers | 109 | ||||
SECTION 10.03 |
Keepwell | 110 | ||||
SECTION 10.04 |
Limitation on Foreign Guarantees | 110 |
SCHEDULES :
Schedule 2.01 Revolving Commitments
Schedule 3.06 Disclosed Matters
Schedule 3.13 Subsidiaries
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.03 Identified Sales Assets
Schedule 6.04 Existing Investments
Schedule 6.08 Existing Restrictions
EXHIBITS :
Exhibit A Form of Assignment and Assumption
Exhibit B Form of Borrower Accession Agreement
Exhibit C-1 U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit C-2 U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit C-3 U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit C-4 U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit D-1 Form of Subsidiary Guarantee Agreement for Domestic Subsidiaries.
Exhibit D-2 Form of Subsidiary Guarantee Agreement for Foreign Subsidiaries
Exhibit E Form of Increasing Lender Agreement
Exhibit F Form of Augmenting Lender Agreement
AMENDED & RESTATED CREDIT AGREEMENT (this Agreement ) dated as of February 1, 2017, among LOGMEIN, INC., a Delaware corporation ( LMI together with each Additional Borrower (as defined below), each a Borrower and, collectively, the Borrowers ), the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
WHEREAS, LMI, LogMeIn Ireland Holding Company Limited, an Irish incorporated limited liability company, the Administrative Agent, and the Lenders as of the date hereof are each party to that certain Credit Agreement dated as of February 18, 2015, which was amended by a First Amendment to Credit Agreement dated as of January 22, 2016 (as further amended, restated, modified and supplemented prior to the date hereof, the Existing Credit Agreement );
WHEREAS, LMI has requested that the aggregate Revolving Commitments be increased to $400,000,000, which the Lenders party hereto are willing to agree to, and the Borrower, the Lenders and the Administrative Agent also wish to amend various other covenants, terms and provisions of the Credit Agreement; and
WHEREAS, LMI desires and intends for LMI Ireland to become an Additional Borrower hereunder, pursuant to and in accordance with Section 5.09 , no later than 90 days after the Effective Date (or such later date as the Administrative Agent may agree); and
WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent agree to amend and restate the Existing Credit Agreement, and the Lenders and the Administrative Agent are willing to so amend and restate the Existing Credit Agreement, on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
Definitions
SECTION 1.01 Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
ABR , when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.
Acquisition means any transaction or series of related transactions resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of any Person (other than an existing Subsidiary), or any business or division of any Person (other than an existing Subsidiary), (b) the acquisition of in excess of fifty percent (50%) of the stock (or other Equity Interest) with ordinary voting power of any Person (other than an existing Subsidiary), or (c) the acquisition of another Person (other than an existing Subsidiary) by a merger, amalgamation or consolidation or any other combination with such Person.
Additional Borrower means any Person that becomes a Borrower pursuant to Section 5.09(a) .
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Additional Lender has the meaning assigned to such term in Section 2.21 .
Adjusted EBITDA means, with respect to LMI and its Subsidiaries for any period, (a) Net Income of LMI and its Subsidiaries for such period, plus (b) to the extent deducted in the calculation of such Net Income for such period, the sum of (i) Interest Expense; (ii) depreciation expense and amortization expense (including, without limitation the depreciation of fixed assets and the amortization of intangible assets); (iii) provision for income tax; (iv) other non-cash charges, costs and expenses (including, but not limited to, stock-based compensation expense), but only to the extent such non-cash charges, costs and expenses are not reserved for a cash charge to be taken in any subsequent period; (v) any amortization of deferred financing fees, including expenses incurred in connection with the closing and initial funding of the Revolving Commitments and Loans hereunder; (vi) non-recurring charges, costs and expenses incurred during such period in connection with proposed or closed acquisitions (including, without limitation, legal costs, accounting fees, integration costs, severance costs and retention bonuses), incurrence of indebtedness or issuance of equity (in each case, whether or not consummated), provided that the amount added back pursuant to this clause (vi) shall not constitute more than 15% of Adjusted EBITDA for such period; (vii) litigation related charges, costs and expenses (including without limitation, legal costs associated with the defense of claims brought against LMI and its Subsidiaries related to intellectual property infringement claims and other material litigation, and the related settlement cost of such litigation), provided that the amount added back pursuant to this clause (vii) shall not constitute more than 15% of Adjusted EBITDA for such period; (viii) charges, losses and expenses incurred in connection with one-time, non-recurring events, provided that the amount added back pursuant to this clause (viii) shall not constitute more than 15% of Adjusted EBITDA for such period; (ix) fees and expenses incurred in connection with the Merger (including, without limitation, legal costs, accounting fees, integration costs, severance costs and retention bonuses); (x) charges, losses and expenses during such period related to foreign currency exchanges, conversions and/or contracts; (xi) losses from sales of property or assets, other than from sales in the ordinary course of business; and (xii) extraordinary losses; minus (c) to the extent included in the calculation of Net Income, the sum of (i) gains from sales of property or assets, other than from sales in the ordinary course of business; (ii) interest income; (iii) other non-cash income and gains; (iv) income and gains during such period related to foreign currency exchanges, conversions and/or contracts and (v) extraordinary gains, in each case determined in accordance with GAAP.
Adjusted LIBO Rate means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Administrative Agent means JPMorgan Chase Bank, N.A. in its capacity as administrative agent for the Lenders hereunder, and any of its Affiliates selected by it to act as administrative agent for any of the facilities provided hereunder, together with its successors and assigns in such capacity.
Administrative Questionnaire means an Administrative Questionnaire in a form supplied by the Administrative Agent.
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Affiliate means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agency Site means the Electronic System established by the Administrative Agent to administer this Agreement.
Agent Party has the meaning assigned to it in Section 9.01(d) .
Aggregate Commitment means the aggregate amount of the Revolving Commitments of all of the Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the Effective Date, the Aggregate Commitment is $400,000,000.
Agreed Currencies means (a) U.S. Dollars, (b) Euro, (c) Pounds Sterling, (d) Australian Dollars and (e) any other freely traded currency acceptable to all of the Lenders.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1 ⁄ 2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period commencing on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, the Adjusted LIBO Rate for any day shall be based on the LIBO Rate at approximately 11:00 a.m. London time on such day, subject to the interest rate floors set forth therein. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
Anti-Corruption Laws means all laws, rules, and regulations of any jurisdiction applicable to any Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.
Applicable Percentage means, with respect to any Lender, the percentage of the Aggregate Commitment represented by such Lenders Revolving Commitment; provided that pursuant to Section 2.20 when a Defaulting Lender shall exist, Applicable Percentage shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting Lenders Revolving Commitment) represented by such Lenders Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments and to any Lenders status as a Defaulting Lender at the time of determination.
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Applicable Rate means, for any day, with respect to any Eurocurrency Loan, Australian Dollar Loan or ABR Loan or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption Applicable Rate for Eurocurrency Loans and Australian Dollar Loans, Applicable Rate for ABR Loans or Applicable Rate for Commitment Fee, as the case may be, based on the Consolidated Total Leverage Ratio applicable on such date:
Pricing Level |
Consolidated Total
Leverage Ratio |
Applicable
Rate
for
Eurocurrency Loans and Australian Dollar Loans |
Applicable
Rate
for ABR Loans |
Applicable Rate
for
Commitment Fee |
||||||||||
1 |
< 1.00 to 1.00 | 1.250 | % | 0.250 | % | 0.150 | % | |||||||
2 |
³
1.00 to 1.00 and
< 2.00 to 1.00 |
1.500 | % | 0.500 | % | 0.200 | % | |||||||
3 |
³
2.00 to 1.00 and
< 3.00 to 1.00 |
1.750 | % | 0.750 | % | 0.250 | % | |||||||
4 |
³ 3.00 to 1.00 | 2.000 | % | 1.000 | % | 0.300 | % |
For purposes of the foregoing, (a) the Consolidated Total Leverage Ratio shall be determined as of the end of each fiscal quarter of LMI and its Subsidiaries based on the Financial Statements delivered pursuant to Section 5.01(a) or (b) and the corresponding certificate delivered pursuant to Section 5.01(c) ; and (b) each change in the Applicable Rate resulting from a change in the Consolidated Total Leverage Ratio shall be effective during the period commencing on and including the date of delivery to the Administrative Agent of such Financial Statements and certificate indicating such change and ending on the date immediately preceding the effective date of the next change in the Applicable Rate; provided that Pricing Level 4 set forth above shall apply if LMI fails to deliver the consolidated Financial Statements required to be delivered by it pursuant to Section 5.01(a) or (b) or the corresponding certificate required to be delivered by it pursuant to Section 5.01(c) , during the period from the expiration of the time for delivery thereof until such Financial Statements and certificate are delivered. Pricing Level 1 set forth above shall apply during the period commencing on and including the Effective Date and ending on the date immediately preceding the delivery of Financial Statements covering the fiscal quarter of LMI and its Subsidiaries ending December 31, 2016 pursuant to Section 5.01(b) and the corresponding certificate pursuant to Section 5.01(c) .
Approved Fund has the meaning assigned to it in Section 9.04(b) .
Assignment and Assumption means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04 ), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
Augmenting Lender has the meaning assigned to such term in Section 2.21(a) .
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Australian Bill Rate means, with respect to any Australian Dollar Borrowing for any Interest Period, the rate per annum equal to the average bid rate (the BBR Screen Rate ) displayed at or about 10:30 a.m. (Sydney Time) on the first day of such Interest Period on the Reuters screen BBSY page for a term equivalent to such Interest Period (expressed as a percentage yield per annum to maturity being the arithmetic average, rounded up to the nearest four decimal places); or to the extent the BBR Screen Rate is not available at such time for any reason, then the applicable rate will be determined by the Administrative Agent to be the average of the buying rates quoted by three Reference Banks at or about 10:30 a.m. (Sydney Time) on the date of determination for bills of exchange with a tenor approximating the length of such Interest Period.
Australian Dollar Loans means any Loan denominated in Australian Dollars.
Australian Dollars or A$ means the lawful currency of Australia.
Availability Period means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Revolving Commitments in accordance with the terms of this Agreement.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Banking Services means any of the following bank services provided to any Borrower or any Subsidiary by any Banking Services Provider: (a) credit cards for commercial customers (including commercial credit cards and purchasing cards), (b) stored value cards, (c) treasury management services (including controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services), (d) foreign exchange services and facilities and (e) any other banking services or facilities provided to any Borrower or any Subsidiary by any Banking Services Provider that any Borrower agrees in writing constitutes a Secured Banking Services Obligation.
Banking Services Agreement means any agreement entered into in connection with Banking Services.
Banking Services Provider means any Person that (a) is a Lender or an Affiliate of a Lender at the time it enters into the applicable Banking Services Agreement, in its capacity as a party thereto, or (b) with respect to any Banking Services Agreement existing as of the Effective Date, is a Lender or an Affiliate of a Lender as of the Effective Date, in its capacity as a party thereto, in each case together with such Persons successors and permitted assigns.
Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended and in effect from time to time.
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Bankruptcy Event means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, examiner, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
Board means the Board of Governors of the Federal Reserve System of the United States of America.
Borrower means each of LMI and each Additional Borrower.
Borrower Accession Agreement means the Borrower Accession Agreement, between the Administrative Agent and an Additional Borrower relating to such Additional Borrower which is to become a Borrower hereunder at any time on or after the Effective Date, the form of which is attached hereto as Exhibit B .
Borrowing means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans and Australian Dollar Loans, as to which a single Interest Period is in effect and (b) Term Loans of the same Type and currency (if applicable) made, converted or continued on the same date and, in the case of Eurocurrency Loans and Australian Dollar Loans, as to which a single Interest Period is in effect.
Borrowing Request means a request by a Borrower for a Revolving Borrowing in accordance with Section 2.03 .
Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Newton, Massachusetts are authorized or required by law to remain closed; provided that, (a) when used in connection with a Eurocurrency Loan, the term Business Day shall also exclude any day that is not a Target Day and (b) when used in connection with an Australian Dollar Loan, the term Business Day shall also exclude any day on which banks are not open for dealings in deposits in Australian Dollars in both London and the place designated by the Administrative Agent with respect to Australian Dollars.
Capital Expenditures means, without duplication, any expenditure for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a consolidated balance sheet of LMI and its Subsidiaries prepared in accordance with GAAP, excluding (a) expenditures made for Permitted Acquisitions, (b) expenditures financed with the proceeds of insurance or casualty proceeds and (c) capitalized software development costs.
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Capital Lease Obligations of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Cash Interest Expense means, with respect to LMI and its Subsidiaries for any period, the portion of the Interest Expense for such period which is paid in cash.
Change in Control means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) of Equity Interests representing more than 35% of the issued and outstanding Voting Stock of LMI; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of LMI by Persons who are not Continuing Directors.
Citrix LLCs means each of Grasshopper Group, LLC, a Massachusetts limited liability company, and GetGo Communications LLC, a Delaware limited liability company, for any period that Citrix Systems, Inc. maintains voting control of each such limited liability company pursuant to the terms of the applicable Citrix LLC Operating Agreement.
Citrix LLC Operating Agreements means, collectively, (a) the Amended and Restated Grasshopper Group, LLC Limited Liability Company Agreement, dated as of January 26, 2017 and (b) the Amended and Restated GetGo Communications LLC Limited Liability Company Agreement, dated as of January 26, 2017.
Change in Law means the occurrence after the date of this Agreement or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b) , by any lending office of such Lender or by such Lenders or such Issuing Banks holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a Change in Law, regardless of the date enacted, adopted or issued.
Class when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing are Revolving Loans or Term Loans.
Code means the United States Internal Revenue Code of 1986, as amended.
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Collateral means all of the Collateral referred to in the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a Lien in favor of the Administrative Agent, on behalf of the Secured Parties, to secure the Secured Obligations. For greater certainty, the term Collateral excludes all Excluded Property as defined in Collateral Documents.
Collateral Documents means, collectively, the Security Agreement and all other agreements, instruments and documents executed in connection with this Agreement that are intended to create or perfect Liens to secure the Secured Obligations, including all other security agreements, pledge agreements, mortgages, deeds of trust, loan agreements, notes, guarantees, subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee letters, notices, leases and all other written matter whether heretofore, now or hereafter executed by LMI or any of its Subsidiaries and delivered to the Administrative Agent. Any reference in this Agreement or any other Loan Document to a Collateral Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to such Loan Document as the same may be in effect at any and all times such reference becomes operative.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Communications has the meaning assigned to it in Section 9.01(d) .
Computation Date has the meaning assigned to it in Section 2.04 .
Connection Income Taxes means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated or consolidated means, with reference to any term defined herein, that term as applied to the accounts of LMI and its Subsidiaries, consolidated in accordance with GAAP.
Consolidated Fixed Charges means, with respect to LMI and its Subsidiaries for any period, without duplication, Cash Interest Expense, plus scheduled principal payments on Indebtedness actually made (in each case other than payments due at maturity), all calculated for LMI and its Subsidiaries on a consolidated basis in accordance with GAAP.
Consolidated Fixed Charge Coverage Ratio means, with respect to LMI and its Subsidiaries for any period, the ratio of (a) Adjusted EBITDA minus Unfinanced Capital Expenditures for such period, to (b) Consolidated Fixed Charges for such period.
Consolidated Senior Secured Leverage Ratio means, as of any date of determination, the ratio of (a) the amount of Senior Secured Debt of LMI and its Consolidated Subsidiaries on such date of determination to (b) Adjusted EBITDA for the most recent Reference Period ending prior to such date of determination for which the Borrowers have delivered Financial Statements, in each case determined on a pro forma basis to give effect to any Permitted Acquisitions or any material disposition of any business or assets consummated during the period commencing on the first day of such Reference Period and ending on such date of determination, in each case as if such transaction occurred on the first day of such Reference Period.
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Consolidated Total Leverage Ratio means as of any date of determination, the ratio of (a) the sum of (i) the balance sheet amount of Indebtedness (other than Indebtedness under clause (l) of the definition of Indebtedness) of LMI and its Consolidated Subsidiaries on such date of determination plus (ii) the stated amount of all outstanding Letters of Credit on such date of determination to (b) Adjusted EBITDA for the most recent Reference Period ending prior to such date of determination for which the Borrowers have delivered Financial Statements, in each case determined on a pro forma basis to give effect to any Permitted Acquisitions or any material disposition of any business or assets consummated during the period commencing on the first day of such Reference Period and ending on such date of determination, in each case as if such transaction occurred on the first day of such Reference Period.
Continuing Director means (a) any member of the Board of Directors of LMI who was a director of LMI on the Effective Date, and (b) any individual who becomes a member of the Board of Directors of LMI after the Effective Date if such individual was approved, appointed or nominated for election to the Board of Directors by a majority of the then Continuing Directors.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto.
Credit Exposure means, with respect to any Lender at any time, the sum of (a) such Lenders Revolving Credit Exposure at such time, plus (b) an amount equal to the aggregate principal amount of such Lenders Term Loans, if any, outstanding at such time.
Credit Party means the Administrative Agent, any Issuing Bank or any other Lender.
Default means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Defaulting Lender means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lenders good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified any Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lenders good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by any Borrower, the Administrative Agent or any Issuing Bank, acting in good faith, to provide a
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certification in writing from an authorized officer of such Lender that such Lender will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agents receipt of such certification in form and substance satisfactory to the Administrative Agent, or (d) has become, or its Lender Parent has become, the subject of (A) a Bankruptcy Event or (B) a Bail-In Action.
Disclosed Matters means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06 .
Dollar Amount of any currency at any date means (a) if such currency is U.S. Dollars, the amount of such currency, or (b) if such currency is a Foreign Currency, the equivalent in such currency of U.S. Dollars, calculated on the basis of the Exchange Rate for such currency on or as of the most recent Computation Date.
Domestic Borrower means LMI and any other Borrower that is incorporated or organized under the laws of the United States or its territories or possessions.
Domestic Subsidiary means any Subsidiary that is incorporated or organized under the laws of the United States or its territories or possessions, excluding (a) any such Subsidiary all or substantially all of the assets of which are Equity Interests (or Equity Interests and debt interests) in a Foreign Subsidiary (or Foreign Subsidiaries) and (b) any such Subsidiary that is owned by a Foreign Subsidiary.
EEA Financial Institution means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
EEA Member Country means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Effective Date means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02 ).
Electronic Signature means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
Electronic System means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such
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electronic system is owned, operated or hosted by the Administrative Agent or any Issuing Bank or any of its respective Related Persons or any other Person, providing for access to data protected by passcodes or other security system.
Environmental Laws means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.
Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Interests means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest (excluding in each case any rights pursuant to a purchase, merger or acquisition agreement for an Acquisition that is permitted pursuant to this Agreement).
Equivalent Amount of any currency with respect to any amount of U.S. Dollars at any date means the equivalent in such currency of such amount of U.S. Dollars, calculated on the basis of the Exchange Rate for such other currency at 11:00 a.m. London time on the date on or as of which such amount is to be determined.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that, together with a Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the existence with respect to any Plan of an accumulated funding deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Borrower or any
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ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
Euro or means the single currency of the participating member states of the European Union.
Eurocurrency when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
Eurocurrency Payment Office of the Administrative Agent shall mean, for each Foreign Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to LMI and each Lender.
Event of Default has the meaning assigned to such term in Article VII.
Exchange Rate means, on any day, with respect to any Foreign Currency, the rate at which such Foreign Currency may be exchanged into U.S. Dollars, as set forth at approximately 11:00 a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with respect to such Foreign Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent in consultation with LMI or, in the event no such service is selected, such Exchange Rate shall instead be calculated on the basis of the arithmetical average of the spot rates of exchange of the Administrative Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time, on such date for the purchase of U.S. Dollars with such Foreign Currency, for delivery two (2) Business Days later; provided , that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent in consultation with LMI may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
Excluded Subsidiary means, (a) any Domestic Subsidiary that is (i) an Immaterial Subsidiary, (ii) an Additional Borrower, (iii) a Massachusetts Securities Corporation, or (iv) a Domestic Subsidiary that requires any governmental consent prior to becoming a Guarantor, which has not been obtained (and the Borrowers shall use commercially reasonable efforts to obtain any such consent), and (b) any Foreign Subsidiary that is (i) an Immaterial Subsidiary,
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(ii) an Additional Borrower, or (iii) a Foreign Subsidiary to the extent that a guaranty by such Foreign Subsidiary (A) is prohibited under applicable foreign law or the organizational documents of such Foreign Subsidiary (but only if such prohibition in organizational documents has not been removed through the commercially reasonable efforts of the Borrowers), (B) requires any governmental or third party consent (for the avoidance of doubt, not including consents from any Affiliate of any Borrower) which has not been obtained (and the Borrowers shall use commercially reasonable efforts to obtain any such consent), (C) could reasonably be expected to cause adverse tax (including foreign tax) consequences to any Borrower or any Subsidiary or (D) would involve costs that would exceed the practical benefits to the Lenders to be afforded by such guaranty (as determined by the Administrative Agent in its reasonable discretion).
Excluded Swap Obligations means, with respect to any Subsidiary Guarantor or any Borrower as a guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Loan Partys failure for any reason to constitute an eligible contract participant (determined after giving effect to any keepwell, support or other agreement for the benefit of such Loan Party) as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Loan Party, or the grant of such security interest, becomes effective with respect to such Swap Obligation or (b) in the case of a Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any successor provision thereto), because such Loan Party is a financial entity, as defined in Section 2(h)(7)(C)(i) the Commodity Exchange Act (or any successor provision thereto), at the time the Guarantee of such Loan Party, or the grant of such security interest, becomes or would become effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, branch profits Taxes and alternative minimum Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Revolving Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan, Letter of Credit or Revolving Commitment (other than pursuant to an assignment requested by LMI under Section 2.19(b) ) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17 , amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender acquired the applicable interest in a Loan, Letter of Credit or Revolving Commitment or to such Lender immediately
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before it changed its lending office, (c) Taxes attributable to such Recipients failure to comply with Section 2.17(f) and (g) , and (d) any U.S. Federal withholding Taxes imposed under FATCA.
FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements (together with any law implementing such agreements).
Federal Funds Effective Rate means, for any day, the rate calculated by the NYFRB based on such days federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate, provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Financial Officer means the chief financial officer, principal accounting officer, treasurer or controller of the applicable Borrower.
Financial Statements means the financial statements furnished or to be furnished pursuant to Sections 5.01(a) and (b) .
Foreign Borrower means any Borrower that is not incorporated or organized under the laws of the United States or its territories or possessions.
Foreign Currencies means Agreed Currencies other than U.S. Dollars.
Foreign Currency Exposure has the meaning assigned to such term in Section 2.11(c) .
Foreign Currency Sublimit means $100,000,000.
Foreign Lender means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the applicable Borrower is resident for tax purposes.
Foreign Subsidiary means any Subsidiary that is not incorporated or organized under the laws of the United States or its territories or possessions, or a Subsidiary that is incorporated under the laws of the United States or its territories or possessions but is not a Domestic Subsidiary as defined in this Agreement.
GAAP means generally accepted accounting principles in the United States of America.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency,
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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.
Guarantee of or by any Person (the guarantor ) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the primary obligor ) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
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.
Immaterial Subsidiary means any Subsidiary that, together with its Subsidiaries, accounts for less than two percent (2.0%) of Adjusted EBITDA and less than two percent (2.0%) of the book value of all assets (other than goodwill) of LMI and its Subsidiaries for the most recent Reference Period preceding the date thereof for which LMI has delivered Financial Statements; provided that the aggregate Adjusted EBITDA of all Immaterial Subsidiaries may not exceed five percent (5.0%) of Adjusted EBITDA and the aggregate book value of assets (other than goodwill) of all Immaterial Subsidiaries may not exceed five percent (5.0%) of the book value of all assets of LMI and its Subsidiaries for the most recent Reference Period preceding the date thereof for which LMI has delivered Financial Statements.
Impacted Interest Period has the meaning assigned to it in the definition of LIBO Rate.
Increasing Lender has the meaning assigned to such term in Section 2.21(a) .
Incremental Term Loan has the meaning assigned to such term in Section 2.21(a).
Incremental Term Loan Amendment has the meaning assigned to such term in Section 2.21(e).
Indebtedness of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all
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obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers acceptances, (k) obligations under any liquidated earn-out and (l) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Swap Agreements, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction; provided that Indebtedness of any Person shall not include unearned revenue to the extent recorded as a liability by such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
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 (a) hereof, Other Taxes.
Ineligible Institution has the meaning assigned to it in Section 9.04(b) .
Information Memorandum means the Confidential Information Memorandum dated January 2017 relating to LMI and the Transactions.
Interest Election Request means a request by any Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.08 .
Interest Expense means, for any period, total interest expense of LMI and its Subsidiaries for such period with respect to all outstanding Indebtedness (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs under hedging agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP).
Interest Payment Date means (a) with respect to any ABR Loan, the last day of each March, June, September and December and (b) with respect to any Eurocurrency Loan or Australian Dollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing or Australian Dollar Borrowing with an Interest Period of more than three months duration, each day prior to the Eurocurrency Borrowing or Australian Dollar Borrowing last day of such Interest Period that occurs at intervals of three months duration after the first day of such Interest Period.
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Interest Period means (a) with respect to any Eurocurrency Borrowing or Australian Dollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, with the consent of each Lender, twelve months or less than one month) thereafter, as the Borrowers may elect; provided , that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of any Eurocurrency Borrowing or Australian Dollar Borrowing, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to any Eurocurrency Borrowing or Australian Dollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
Interpolated Rate means, at any time, for any Interest Period for any Agreed Currency, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for such Agreed Currency for the longest period for which the LIBO Screen Rate is available for such Agreed Currency) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for such Agreed Currency for the shortest period (for which that LIBO Screen Rate is available (for such Agreed Currency) that exceeds the Impacted Interest Period, in each case, at such time.
IRS means the United States Internal Revenue Service.
Issuing Bank means each of JPMorgan Chase Bank, N.A., Wells Fargo Bank, N.A., Royal Bank of Canada (which shall not be obligated to issue any trade Letters of Credit), and any other Lender that agrees to act as an Issuing Bank, is so designated by LMI and reasonably acceptable to the Administrative Agent, each in its respective capacity as issuer of Letters of Credit hereunder, and any successor in such capacity as provided in Section 2.06(i) . Any Issuing Bank may, with the approval of the Administrative Agent, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term Issuing Bank shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. Each reference herein to the Issuing Bank shall be deemed to be a reference to the relevant Issuing Bank.
LC Disbursement means a payment made by any Issuing Bank pursuant to a Letter of Credit.
LC Exposure means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of any Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of
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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 International Standby Practices (ISP98) (International Chamber of Commerce or ICC Publication No. 590), such Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be drawn.
Lender Parent means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
Lenders means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term Lenders includes each Issuing Bank.
Letter of Credit means any letter of credit issued pursuant to this Agreement.
LIBO Rate means, with respect to any Eurocurrency Borrowing for any Agreed Currency and for any Interest Period, the London interbank offered rate for such Agreed Currency as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for such Agreed Currency) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; in each case the LIBO Screen Rate ) at approximately 11:00 a.m., London time, two Target Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided furthe r that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an Impacted Interest Period ) with respect to the applicable Agreed Currency then the LIBO Rate shall be the Interpolated Rate; provided that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
LIBO Screen Rate has the meaning assigned to it in the definition of LIBO Rate.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
LMI means LogMeIn, Inc., a Delaware corporation.
LMI Ireland means LogMeIn Ireland Holding Company Limited, an Irish incorporated limited liability company.
Loan Documents means, collectively, this Agreement, each Subsidiary Guarantee Agreement and each supplement thereto, each promissory note delivered pursuant to this
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Agreement, each Letter of Credit application, the Collateral Documents, the Post-Closing Letter and any other agreements, instruments, documents and certificates executed by or on behalf of any Loan Party and delivered to or in favor of the Credit Parties concurrently herewith or hereafter in connection with the transactions hereunder (but, for avoidance of doubt, excluding any Swap Agreements and Banking Services Agreements). Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to such Loan Document as the same may be in effect at any and all times such reference becomes operative.
Loan Parties means each Borrower and each Subsidiary Guarantor.
Loans means the loans (which shall include any Term Loan(s)) made by the Lenders to any Borrower pursuant to this Agreement.
Local Time means (a) in the case of a Loan, Borrowing or LC Disbursement denominated in U.S. Dollars, New York City time, and (b) in the case of a Loan, Borrowing or LC Disbursement denominated in a Foreign Currency, local time (it being understood that such local time shall mean London, England time unless LMI is otherwise notified by the Administrative Agent).
Lower Priced Period has the meaning assigned to it in Section 2.13 .
Massachusetts Securities Corporation means any Domestic Subsidiary that is classified as a security corporation by the Massachusetts Department of Revenue pursuant to Massachusetts General Law c. 63, § 38B.
Material Adverse Effect means a material adverse effect on (a) the business, assets, property or condition (financial or otherwise) of LMI and its Subsidiaries taken as a whole, or (b) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent or the Lenders thereunder.
Material Indebtedness means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of LMI and its Subsidiaries in an aggregate principal amount exceeding $20,000,000. For purposes of determining Material Indebtedness, the principal amount of the obligations of any Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the notional amount of the swap obligations with respect to such Swap Agreement.
Material Subsidiary means any Subsidiary other than an Immaterial Subsidiary.
Maturity Date means February 1, 2022.
Merger means the proposed merger/Reverse Morris Trust transaction with GetGo, Inc., a Delaware corporation ( GetGo ) and wholly owned subsidiary of Citrix Systems, Inc., a Delaware corporation ( Citrix ), pursuant to the Merger Agreement.
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Merger Agreement means that certain Agreement and Plan of Merger, dated as of July 26, 2016, among Citrix, GetGo, LMI, and Lithium Merger Sub, Inc., a Delaware corporation and direct wholly-owned subsidiary of LMI (together with all exhibits, schedules and disclosure letters thereto, and as the same has been amended to the date hereof and as may be further amended in accordance with the provisions of this Agreement.
Moodys means Moodys Investors Service, Inc. or any successor thereto.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Net Income means, for any period, the consolidated net income (or loss) of LMI and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; excluding (a) the income (or deficit) of any entity accrued prior to the date it becomes a Subsidiary of LMI or is merged into or consolidated with LMI, (b) the income (or deficit) of any such entity (other than a Subsidiary of LMI) in which LMI or any Subsidiary has an ownership interest, except to the extent that any such income is actually received by LMI or such Subsidiary in the form of dividends or similar distributions, and (c) the undistributed earnings of any Subsidiary of LMI to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any Loan Document) or legal requirement applicable to such Subsidiary.
Non-Consenting Lender means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 9.02 and (b) has been approved by the Required Lenders.
Non-Loan Party Subsidiary means any Subsidiary that is not a Loan Party.
NYFRB means the Federal Reserve Bank of New York.
Obligations means all advances to, and debts, liabilities, obligations, covenants and duties of, any Borrower arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect, 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 Borrower of any proceeding under any debtor relief laws naming any Borrower as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit 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,
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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 2.19 ).
Overnight Foreign Currency Rate means, for any amount payable in a Foreign Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in such Foreign Currency (or if such amount due remains unpaid for more than three (3) Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for such Foreign Currency as determined above and in an amount comparable to the unpaid principal amount of the related Borrowing or LC Disbursement, plus any taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent bank in respect of such amount in such Foreign Currency.
Participant has the meaning assigned to such term in Section 9.04(c) .
Participant Register has the meaning assigned to such term in Section 9.04(c) .
Parties means the Borrowers or any of their respective Affiliates.
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Permitted Acquisition means any Acquisition by any Borrower or any Subsidiary that satisfies all of the following conditions:
(a) both before and immediately after giving effect to such Acquisition and the incurrence or assumption of any Indebtedness in connection therewith, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(b) both before and immediately after giving effect to such Acquisition and the incurrence or assumption of any Indebtedness in connection therewith, the Borrowers shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.10 ;
(c) if the aggregate consideration paid in connection with such Acquisition (including all cash consideration paid, all transaction costs incurred and all Indebtedness incurred or assumed in connection therewith, and the maximum amount payable under any earn-out obligations in connection therewith as reasonably calculated on the date of such Acquisition) exceeds $50,000,000, LMI shall have first delivered to the Administrative Agent a certificate demonstrating compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.10 , in accordance with paragraph (b) of this definition, together with copies of corresponding pro forma financial statements, in each case in form and detail reasonably satisfactory to the Administrative Agent;
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(d) such Acquisition shall not be actively opposed by the board of directors (or similar governing body) of the selling Persons or the Persons whose Equity Interests are to be acquired; and
(e) in the case of an Acquisition involving the merger, amalgamation or consolidation of any Loan Party, the surviving entity shall be a Loan Party or shall become a Loan Party, in each case, to the extent required in accordance with Section 5.10 .
Permitted Encumbrances means:
(a) Liens imposed by law for Taxes that are not yet delinquent or are being contested in compliance with Section 5.04 ;
(b) carriers, warehousemens, mechanics, materialmens, repairmens, landlords and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04 ;
(c) pledges and deposits made in compliance with workers compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e) Liens in respect of judgments, orders or awards that do not constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances (including matters of record, minor defects and irregularities in title) on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of any Borrower or any Subsidiary;
(g) the interests of lessors and leasees (and any Liens on the interests of any lessor or leasee) under leases; and
(h) the interests of licensors and licensees (and any Liens on the interests of any licensors or licensee) under license agreements;
provided that the term Permitted Encumbrances shall not include any Lien securing Indebtedness.
Permitted Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
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(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moodys;
(c) investments in certificates of deposit, bankers acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent, any Lender or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moodys and (iii) have portfolio assets of at least $5,000,000,000;
(f) marketable securities that are listed as such on LMIs Financial Statements; and
(g) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.
Permitted Unsecured Debt has the meaning assigned to it in Section 6.01(q) .
Permitted Unsecured Debt Repayment and Repurchase means payments or prepayments of, or payments or prepayments applied to the redemption (or repurchase and immediate cancellation) of, any Permitted Unsecured Debt, so long as at the time thereof and immediately after giving effect (including pro forma effect) thereto, (a) no Default or Event of Default shall have occurred and be continuing and (b) (i) LMI shall be in compliance on a Pro Forma Basis with the Consolidated Total Leverage Ratio financial covenant set forth in Section 6.10(b) , and (ii) the aggregate consideration paid in connection with all such Permitted Unsecured Debt Repayments and Repurchases shall not exceed $15,000,000 in the aggregate during any fiscal year for all such payments or prepayments; provided , however , that the limit on aggregate consideration set forth in preceding clause (b)(ii) will not apply to any Permitted Unsecured Debt Repayment and Repurchase made during a period when the Consolidated Total Leverage Ratio on a Pro Forma Basis (both before and immediately after giving effect to such payments or prepayments) does not exceed 3.50 to 1.00, and any Permitted Unsecured Debt Repayment and Repurchase made during such period shall not be counted against such limit.
Person means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
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Plan means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA.
Platform means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.
Post-Closing Letter means that certain Post-Closing Letter between LMI and the Administrative Agent, dated as of the date hereof.
Pounds Sterling or £ means the lawful currency of the United Kingdom.
Prime Rate means the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its office located in New York, New York; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
Pro Forma Basis means, with respect to any Acquisition, that the Borrowers are in pro forma compliance with the applicable financial covenants set forth in Section 6.10 (or any more restrictive financial ratio required hereunder, as applicable), recomputed (a) as if such Acquisition (including the incurrence or assumption of any Indebtedness in connection therewith) had occurred on the first day of the most recent Reference Period preceding the date of such Acquisition for which the Borrowers have delivered Financial Statements, (b) with Indebtedness, cash and Cash Equivalent Investments measured as of the date of such Acquisition and immediately after giving effect to such Acquisition and any Indebtedness incurred or assumed in connection therewith, and (c) with Adjusted EBITDA measured for the Reference Period then most recently ended for which LMI has delivered Financial Statements, adjusted as if such Acquisition and any other Acquisitions occurring after the first day of such Reference Period and prior to the date of the calculation had occurred on the first day of such Reference Period.
Public-Sider means a Lender whose representatives may trade in securities of LMI or any of its Subsidiaries while in possession of the Financial Statements.
Qualified ECP Guarantor means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an eligible contract participant under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an eligible contract participant at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Recipient means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
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Reference Banks means in connection with any determination of the Australian Bill Rate, the principal Sidney offices, in each case, of JPMorgan Chase Bank, N.A. and one or more Lenders selected by the Administrative Agent from time to time which agrees to be as a Reference Bank hereunder.
Reference Period means, as of the last day of any fiscal quarter, the period of four (4) consecutive fiscal quarters of LMI and its Subsidiaries ending on such date.
Register has the meaning assigned to such term in Section 9.04(b) .
Related Parties means, with respect to any specified Person, such Persons Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Persons Affiliates.
Required Lenders means, at any time, Lenders having Credit Exposures and unused Revolving Commitments representing more than 50% of the sum of the total Credit Exposures and unused Revolving Commitments at such time; provided that, unless otherwise consented to by the Required Lenders, for the purpose of determining the Required Lenders needed for any waiver, amendment, modification or consent, any Lender that is a Borrower, or any Affiliate of any Borrower shall be disregarded.
Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in any Borrower 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 Equity Interests in any Borrower or any option, warrant or other right to acquire any such Equity Interests in any Borrower.
Revolving Commitment means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of such Lenders Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04 . The initial amount of each Lenders Revolving Commitment is set forth on Schedule 2.01 , or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable.
Revolving Credit Exposure means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lenders Revolving Loans and its LC Exposure at such time.
Revolving Loan means a Loan made pursuant to Section 2.03 .
S&P means Standard & Poors or any successor thereto.
Sale and Leaseback Transaction has the meaning assigned to it in Section 6.07(b) .
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Sanctioned Country means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Sudan, Syria and Crimea).
Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union, any European Union member state, Her Majestys Treasury of the United Kingdom, or other sanctions authority having jurisdiction over LMI or any of its Subsidiaries, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or Controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
Sanctions means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majestys Treasury of the United Kingdom, or other relevant sanctions authority having jurisdiction over LMI or any of its Subsidiaries.
SEC means the Securities and Exchange Commission of the United State of America.
Secured Banking Services Obligations means any and all obligations of any Borrower or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) under any and all Banking Services Agreements with a Banking Services Provider.
Secured Obligations means, collectively, all Obligations, Secured Swap Obligations and Secured Banking Services Obligations.
Secured Parties means, collectively, the holders of the Secured Obligations from time to time and shall include (a) each Lender and each Issuing Bank in respect of their Loans and LC Exposure, (b) the Administrative Agent, the Issuing Banks and the Lenders in respect of all other present and future obligations and liabilities of the Loan Parties of every type and description arising under or in connection with this Agreement or any other Loan Document, (c) each Swap Provider and Banking Services Provider in respect of Secured Swap Obligations and Secured Banking Services Obligations, (d) each indemnified party under Section 9.03 in respect of the obligations and liabilities of the Loan Parties to such Person hereunder and under the other Loan Documents, and (e) the respective successors and (in the case of a Lender, permitted) transferees and assigns of the foregoing Persons.
Secured Swap Obligations means any and all obligations of LMI or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements permitted hereunder with a Swap Provider, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap
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Agreement transaction; provided, however, that for any applicable Subsidiary Guarantor or Borrower as a guarantor thereof, the Secured Swap Obligations shall not include Swap Obligations that constitute Excluded Swap Obligations with respect to such Subsidiary Guarantor or Borrower as a guarantor.
Security Agreement means the Amended and Restated Pledge and Security Agreement dated as of the date hereof among the Loan Parties and the Administrative Agent, for the benefit of the Secured Parties, as amended, restated, supplemented or otherwise modified from time.
Senior Secured Debt of any Person means, as of any date of determination, the sum of (i) the balance sheet amount of Indebtedness (other than Indebtedness under clause (l) of the definition of Indebtedness) of LMI and its Consolidated Subsidiaries on such date of determination plus (ii) the stated amount of all outstanding Letters of Credit on such date of determination, in each case, that (a) is secured by a Lien on any property or asset of LMI or any of its Subsidiaries and (b) does not constitute Subordinated Indebtedness.
Solvent means that LMI and its Subsidiaries on a consolidated basis are solvent within the meaning given such term and similar terms under applicable laws relating to fraudulent transfers and conveyances, including that (a) the fair value of the assets of the LMI and its Subsidiaries on a consolidated basis, at a fair valuation, exceeds their aggregate debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the assets of LMI and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) LMI and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) LMI and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the business in which they are engaged.
Statutory Reserve Rate means, with respect to any currency, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other such requirements) established by any central bank, monetary authority, the Board, the Financial Services Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in such currency, expressed in each case as a decimal. Such reserve, liquid asset, fees or similar requirements shall, in the case of Loans denominated in U.S. Dollars, include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans and Australian Dollar Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation, including Regulation D of the Board. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
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Subordinated Indebtedness means any Indebtedness of LMI or any Subsidiary that is expressly subordinated in right of payment and performance to the Obligations, in form and substance reasonably satisfactory to the Administrative Agent.
subsidiary means, with respect to any Person (the parent ) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Subsidiary means any direct or indirect subsidiary of any Borrower. Unless the context otherwise requires, Subsidiary means any direct or indirect subsidiary of LMI.
Subsidiary Guarantee Agreement means a Subsidiary Guarantee Agreement by each Subsidiary Guarantor in favor of the Credit Parties, substantially in the form of Exhibit D- 1 hereto (for Domestic Subsidiaries) or Exhibit D-2 hereto (for Foreign Subsidiaries), and each supplement thereto.
Subsidiary Guarantors means, collectively, (a) each Domestic Subsidiary of LMI other than any Excluded Subsidiary, and (b) if there is a Foreign Borrower, then any first tier Foreign Subsidiary of any Borrower that is incorporated or organized in the same jurisdiction as any Foreign Borrower or any other Subsidiary Guarantor, in each case, other than any Excluded Subsidiary.
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan (or agreements entered into pursuant to any such plan) providing for payments only on account of services provided by current or former directors, officers, employees or consultants of any Borrower or any Subsidiary shall be a Swap Agreement.
Swap Obligation means 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 Provider means any Person that (a) is a Lender or an Affiliate of a Lender at the time it enters into the applicable Swap Agreement, in its capacity as a party thereto, or (b) with respect to any Swap Agreement existing as of the Effective Date, is a Lender or an Affiliate of a Lender as of the Effective Date, in its capacity as a party thereto, in each case together with such Persons successors and permitted assigns.
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Taxes means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Target Day means any day on which (a) with respect to any Eurocurrency Loan in an Agreed Currency other than U.S Dollars, (i) TARGET2 is open for Settlement of payments in Euro and (ii) banks are open for dealings in deposits in Euro in the London interbank market, and (b) with respect to any Eurocurrency Loan in U.S Dollars any day on which banks are open for dealings in U.S. Dollar in the London interbank market.
TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
Term Loans means, if applicable, the Incremental Term Loans and any other term loans provided for, now or in the future, and outstanding hereunder, as this Agreement may be amended, modified, supplemented, or amended and restated from time to time.
Total Revolving Credit Exposure means, the sum of Dollar Amount of the outstanding principal amount of all Lenders Revolving Loans and their LC Exposure at such time.
Transactions means the execution, delivery and performance by the Borrowers of this Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
Type , when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate, the Australian Bill Rate or the Alternate Base Rate.
UCC means the Uniform Commercial Code as in effect in the State of New York; provided, that if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, UCC means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
Unfinanced Capital Expenditures means, for any period, Capital Expenditures of LMI and its Subsidiaries made during such period which are not financed from the proceeds of any Indebtedness (other than Revolving Loans hereunder; it being understood and agreed that, to the extent any Capital Expenditures are financed with Revolving Loans, such Capital Expenditures shall not be deemed to be Unfinanced Capital Expenditures).
U.S. or United States means the United States of America.
U.S. Dollars or $ means the lawful currency of the United States of America.
U.S. Loan Party means LMI and any other Loan Party that is not a Foreign Subsidiary.
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U.S. Person means a United States person within the meaning of Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3) .
Voting Stock means, as of any date, the Equity Interests of any Person that are at the time entitled to vote (without regard to the occurrence of any contingency) in the election of the board of directors, board of managers or other equivalent governing body of such Person.
Withdrawal Liability means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Write-Down and Conversion Powers means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02 Classification of Loans and Borrowings . For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a Revolving Loan ) or by Type (e.g., a Eurocurrency Loan or Australian Dollar Loan ) or by Class and Type (e.g., a Eurocurrency Revolving Loan or Australian Dollar Revolving Loan ). Borrowings also may be classified and referred to by Class (e.g., a Revolving Borrowing ) or by Type (e.g., a Eurocurrency Borrowing ) or by Class and Type (e.g., a Eurocurrency Revolving Borrowing ).
SECTION 1.03 Terms Generally . 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 (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Persons successors and assigns (subject to any restrictions on assignments as set forth herein), (c) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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SECTION 1.04 Accounting Terms; GAAP . Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if LMI notifies the Administrative Agent that LMI requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies LMI that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Borrower or any Subsidiary at fair value, as defined therein.
ARTICLE II.
The Credits
SECTION 2.01 Revolving Commitments . Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving Loans to any Borrower in Agreed Currencies from time to time during the Availability Period in an aggregate principal amount that will not result (after giving effect to any application of proceeds of such Borrowing pursuant to Section 2.10 ) in, subject to Section 2.04 , (a) the Dollar Amount of such Lenders Revolving Credit Exposure exceeding such Lenders Revolving Commitment or (b) the Dollar Amount of the total outstanding Revolving Loans and LC Exposure, in each case denominated in Foreign Currencies, exceeding the Foreign Currency Sublimit. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02 Loans and Borrowings . (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their respective Revolving Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Revolving Commitments of the Lenders are several and no Lender shall be responsible for any other Lenders failure to make Loans as required.
(b) Subject to Section 2.14 , each Revolving Borrowing shall be comprised entirely of ABR Loans, Eurocurrency Loans or Australian Dollar Loans as the applicable Borrower may request in accordance herewith, provided that each ABR Loan shall only be made in U.S. Dollars; and provided , further , that the initial Borrowing hereunder shall be comprised entirely of ABR Loans unless LMI has delivered to the Administrative Agent, at least three (3) Business Days prior to the date of the proposed initial Borrowing, a funding indemnity letter in form and substance reasonably satisfactory to the Administrative Agent. Each Lender at its option may make any Eurocurrency Loan or any Australian Dollar Loan by causing any domestic
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or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing or Australian Dollar Borrowing, such Borrowing shall be in an aggregate amount that is (i) an integral multiple of (A) in the case of a Borrowing denominated in U.S. Dollars, $500,000 and (B) in the case of a Borrowing denominated in any Foreign Currency, the smallest amount of such Foreign Currency that is an integral multiple of 500,000 units of such currency and that has an Equivalent Amount in excess of $500,000, and (ii) not less than (A) in the case of a Borrowing denominated in U.S. Dollars, $1,000,000 and (B) in the case of a Borrowing denominated in any Foreign Currency, the smallest amount of such Foreign Currency that is an integral multiple of 1,000,000 units of such currency and that has an Equivalent Amount in excess of $1,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire balance of the unused Revolving Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) . Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be (x) more than a total of ten (10) Eurocurrency Revolving Borrowings outstanding or (y) more than a total of five (5) Australian Dollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrowers shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
SECTION 2.03 Requests for Revolving Borrowings . To request a Revolving Borrowing, LMI, on behalf of the requesting Borrower, shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurocurrency Borrowing denominated in U.S. Dollars, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of the proposed Borrowing, (b) in the case of a Eurocurrency Borrowing denominated in a Foreign Currency and in the case of an Australian Dollar Borrowing, not later than 11:00 a.m., Local Time, four (4) Business Days before the date of the proposed Borrowing, or (c) in the case of an ABR Borrowing, not later than 12:00 noon, New York City time, on the day of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by LMI. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02 :
(i) the Borrower requesting such Borrowing;
(ii) aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
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(iv) whether such Borrowing is to be an ABR Borrowing, a Eurocurrency Borrowing or an Australian Dollar Borrowing;
(v) in the case of a Eurocurrency Borrowing, the Agreed Currency and the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term Interest Period;
(vi) in the case of an Australian Dollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term Interest Period;
(vii) the location and number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07 ; and
(viii) in the case of a Borrowing in an Agreed Currency, the jurisdiction from which payments of the principal and interest on such Borrowing will be made.
If no denomination is specified with respect to any requested Eurocurrency Borrowing, then the requested Revolving Borrowing shall be denominated in U.S. Dollars. If no election as to the Type of Revolving Borrowing is specified, then, in the case of a Borrowing denominated in U.S. Dollars, the requested Revolving Borrowing shall be an ABR Borrowing, and in the case of a Borrowing denominated in a Foreign Currency, the requested Revolving Borrowing shall be a Eurocurrency Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Revolving Borrowing or Australian Dollar Revolving Borrowing, then the Borrowers shall be deemed to have selected an Interest Period of one months duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04 Determination of Dollar Amounts . The Administrative Agent will determine the Dollar Amount of:
(a) each Eurocurrency Borrowing and each Australian Dollar Borrowing as of the date two (2) Business Days prior to the date of such Borrowing or, if applicable, the date of conversion or continuation of any Borrowing as a Eurocurrency Borrowing or Australian Dollar Borrowing;
(b) the LC Exposure as of the date of each request for the issuance, amendment, renewal or extension of any Letter of Credit; and
(c) all outstanding Revolving Loans and the LC Exposure on and as of the last Business Day of each calendar quarter and, during the continuation of an Event of Default, on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the preceding clauses (a), (b) and (c) is herein described as a Computation Date with respect to each Borrowing, Letter of Credit or LC Exposure for which a Dollar Amount is determined on or as of such day.
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SECTION 2.05 [Reserved.]
SECTION 2.06 Letters of Credit . (a) Genera l. Subject to the terms and conditions set forth herein, any Borrower may request the issuance of Letters of Credit denominated in Agreed Currencies as the applicant thereof for the support of its or any of its Subsidiaries obligations, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Availability Period. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by any Borrower to, or entered into by any Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Notwithstanding anything herein to the contrary, no Issuing Bank shall have any obligation hereunder to issue, and shall not issue, any Letter of Credit the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject of any Sanctions or (ii) in any manner that would result in a violation of any Sanctions by any party to this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions . To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), LMI, on behalf of the requesting Borrower, shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension, but in any event no less than three Business Days or such shorter period as the applicable Issuing Bank shall agree) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the Agreed Currency applicable thereto, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, LMI also shall submit a letter of credit application on the applicable Issuing Banks standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit LMI shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the Dollar Amount of the LC Exposure shall not exceed $15,000,000, (ii) the Dollar Amount of each Lenders Revolving Credit Exposure shall not exceed its Revolving Commitment and (iii) the Dollar Amount of the total Revolving Credit Exposures of all Lenders denominated in Foreign Currencies shall not exceed the Foreign Currency Sublimit.
(c) Expiration Date . Each Letter of Credit shall expire (or be subject to termination by notice from the applicable Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such
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Letter of Credit (provided that any Letter of Credit with a one-year tenor may provide for the renewal thereof for additional one year periods) and (ii) the date that is five (5) Business Days prior to the Maturity Date.
(d) Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lenders Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lenders Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the applicable Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to any Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursemen t. If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 1:00 p.m., Local Time, on the date that such LC Disbursement is made, if the applicable Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such notice has not been received by the applicable Borrower prior to such time on such date, then not later than 1:00 p.m., Local Time, on the Business Day immediately following the day that the applicable Borrower receives such notice; provided that, if such LC Disbursement is not less than the Equivalent Amount of $100,000, the applicable Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR Revolving Borrowing in the Dollar Amount of such LC Disbursement and, to the extent so financed, the applicable Borrowers obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If any reimbursement required pursuant to the previous sentence is not made when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the applicable Borrower in respect thereof and such Lenders Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the applicable Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Lenders. Any amount funded by the Lenders under this Section 2.06(e) shall be deemed to be an ABR Revolving Borrowing in the amount of such funding and shall satisfy the Borrowers obligation with respect to such LC Disbursement. Promptly following receipt by the Administrative Agent of any payment from any Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
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applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans as contemplated above) shall not constitute a Loan and shall not relieve any Borrower of its obligation to reimburse such LC Disbursement. If any Borrowers reimbursement of, or obligation to reimburse, any amounts in any Foreign Currency would subject the Administrative Agent, any Issuing Bank or any Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in U.S. Dollars, LMI shall, at its option, either (x) pay the amount of any such tax requested by the Administrative Agent, such Issuing Bank or the relevant Lender or (y) reimburse each LC Disbursement made in such Foreign Currency in U.S. Dollars, in an amount equal to the Dollar Amount, calculated using the applicable exchange rates, on the date such LC Disbursement is made, of such LC Disbursement.
(f) Obligations Absolute . The Borrowers obligations to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers obligations hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of an Issuing Bank; provided that the foregoing shall not be construed to excuse an Issuing Bank from liability to any Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by LMI or any of its Subsidiaries that are caused by such Issuing Banks failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of bad faith, gross negligence or willful misconduct on the part of an Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
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(g) Disbursement Procedure s. Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the applicable Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve LMI of its obligation to reimburse each Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest . If any Issuing Bank shall make any LC Disbursement, then, unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the reimbursement is due and payable at the rate per annum then applicable to ABR Revolving Loans (or, if such LC Disbursement is denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for such Foreign Currency plus the then effective Applicable Rate with respect to Eurocurrency Revolving Loans or, if applicable, the Overnight Foreign Currency Rate for such Australian Dollars plus the then effective Applicable Rate with respect to Australian Dollar Revolving Loans) and such interest shall be due and payable on the date when such reimbursement is payable; provided that, if the applicable Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section and such LC Disbursement is not funded with Revolving Loan pursuant to such paragraph (e), then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of an Issuing Bank or Addition of a New Issuing Bank . Any Issuing Bank may be replaced at any time by written agreement among LMI, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. In addition, LMI may add a new Issuing Bank by written agreement among such Issuing Bank and the Administrative Agent. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank or addition of a new Issuing Bank. At the time any such replacement shall become effective, LMI shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b) . From and after the effective date of any such replacement, (i) such successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term Issuing Bank shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. From and after the effective date of any addition of a new Issuing Bank, (i) such Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term Issuing Bank shall be deemed to refer to such Issuing Bank, as the context shall require. After the replacement of the Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of any Issuing Bank under this Agreement with respect to Letters of
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Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit. Subject to, and conditioned on, the appointment and acceptance of a successor Issuing Bank, any Issuing Bank may resign as an Issuing Bank at any time upon thirty days prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Issuing Bank shall be replaced in accordance with this Section 2.06(i).
(j) Cash Collateralization . If any Event of Default shall occur and be continuing, on the Business Day that LMI receives notice from the Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Applicable Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to 103% of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to any Borrower described in clause (h) or (i) of Article VII. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrowers under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrowers risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of any Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required Lenders) be applied to satisfy other obligations of the Borrowers under this Agreement. If any Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to such Borrower within three Business Days after all Events of Default have been cured or waived.
SECTION 2.07 Funding of Borrowings . (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds (i) in the case of Loans denominated in U.S. Dollars, by 1:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, and (ii) in the case of Loans denominated in a Foreign Currency, by 1:00 p.m., Local Time, in the city of the Administrative Agents Eurocurrency Payment Office for such Foreign Currency and at such Eurocurrency Payment Office. The Administrative Agent will make such Loans available to the applicable Borrower by promptly crediting the amounts so received, in like funds, to (x) in the case of Loans denominated in U.S. Dollars, an account of the applicable Borrower maintained with the Administrative Agent in New York City and designated by such Borrower in the applicable Borrowing Request, and (y) in the case of Loans denominated in a Foreign Currency, an account of the applicable Borrower in the relevant jurisdiction and designated by such Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
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(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then such Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency) or (ii) in the case of such Borrower, for the first two Business Days following the date on which such amount is made available to such Borrower, the interest rate applicable to such Loan, and at the expiration of the second Business Day and thereafter, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lenders Loan included in such Borrowing.
SECTION 2.08 Interest Elections . (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing or Australian Dollar Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the applicable Borrower may elect to convert such Borrowing to a different Type, provided that a Eurocurrency Revolving Borrowing or Australian Dollar Revolving Borrowing denominated in a Foreign Currency may not be converted to a different Type, or to continue such Borrowing and, in the case of a Eurocurrency Revolving Borrowing or Australian Dollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. Such Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the applicable Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the applicable Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the applicable Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02 :
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the
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portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing, a Eurocurrency Borrowing or Australian Dollar Borrowing; and
(iv) if the resulting Borrowing is (1) an Australian Dollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, or (2) a Eurocurrency Borrowing, the Interest Period and Agreed Currency to be applicable thereto after giving effect to such election, in each case, which shall be a period contemplated by the definition of the term Interest Period .
If any such Interest Election Request requests a Eurocurrency Borrowing or Australian Dollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one months duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lenders portion of each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Revolving Borrowing or Australian Dollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) in the case of a Borrowing denominated in U.S. Dollars, such Borrowing shall be converted to an ABR Borrowing, and (ii) in the case of a Borrowing denominated in a Foreign Currency, such Borrowing shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency or, in the case of an Australian Dollar Borrowing it shall automatically continue as an Australian Dollar Borrowing in such currency, with an Interest Period of one (1) month. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies LMI, then, so long as an Event of Default is continuing (x) no outstanding Revolving Borrowing may be converted to or continued as a Eurocurrency Borrowing or Australian Dollar Borrowing and (y) unless repaid, each Eurocurrency Revolving Borrowing and Australian Dollar Borrowing shall be converted to an ABR Borrowing (and any such Australian Dollar Borrowing and Eurocurrency Borrowing denominated in a Foreign Currency shall be redenominated in Dollars at the time of such conversion) at the end of the Interest Period applicable thereto.
SECTION 2.09 Termination and Reduction of Revolving Commitments . (a) Unless previously terminated, the Revolving Commitments shall terminate on the Maturity Date.
(b) LMI may at any time terminate, or from time to time reduce, the Revolving Commitments; provided that (i) each reduction of the Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii)
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LMI shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.11 , the Total Revolving Credit Exposure would exceed the Aggregate Commitment.
(c) LMI shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments under paragraph (b) of this Section at least three Business Days (or such shorter period as the Administrative Agent shall agree) prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by LMI pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitments delivered by LMI may state that such notice is conditioned upon the effectiveness of other credit facilities or the closing of another transaction, in which case such notice may be revoked, or the effective date of such reduction or termination extended, by LMI (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments.
SECTION 2.10 Repayment of Loans; Evidence of Debt . (a) Each Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan made to such Borrower on the Maturity Date. On the Maturity Date, all Loans shall become absolutely due and payable and the Borrowers shall pay all of the Loans outstanding, together with any and all accrued and unpaid interest thereon.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class, Agreed Currency and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lenders share thereof. The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the Obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay the Loans in accordance with the terms of this Agreement. In the event of any conflict between the accounts and records maintained by any Lender pursuant to paragraph (b) and the accounts and records of the Administrative Agent maintained pursuant to paragraph (c) in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
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(d) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the applicable Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form reasonably approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04 ) be represented by one or more promissory notes in such form.
SECTION 2.11 Prepayment of Loans . (a) Any Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this Section; provided that each prepayment shall be in an aggregate amount that is (i) an integral multiple of (A) in the case of a Borrowing denominated in U.S. Dollars, $100,000 and (B) in the case of a Borrowing denominated in any Foreign Currency, the smallest amount of such Foreign Currency that is an integral multiple of 100,000 units of such currency and that has an Equivalent Amount in excess of $100,000, and (ii) not less than (A) in the case of a Borrowing denominated in U.S. Dollars, $500,000 and (B) in the case of a Borrowing denominated in any Foreign Currency, the smallest amount of such Foreign Currency that is an integral multiple of 500,000 units of such currency and that has an Equivalent Amount in excess of $500,000.
(b) LMI shall notify the Administrative Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Borrowing denominated in U.S. Dollars, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of prepayment, (ii) in the case of prepayment of a Eurocurrency Borrowing denominated in a Foreign Currency or of an Australian Dollar Borrowing not later than 11:00 a.m., Local Time, four (4) Business Days before the date of prepayment or (iii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.09 , then such notice of prepayment may be revoked, or the date of such prepayment extended, if such notice of termination is revoked, or the date of such termination extended, in accordance with Section 2.09 . Promptly following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Revolving Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02 . Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13 and break funding payments to the extent required by Section 2.16 .
(c) If at any time, (i) other than as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar Amount of the total Revolving Credit Exposures of all Lenders (calculated, with respect to Revolving Loans and LC Exposure denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Lenders Revolving Loans and LC Exposure) exceeds the Aggregate Commitment or (ii) solely as a result of fluctuations in currency exchange rates, (A) the aggregate principal Dollar
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Amount of the total Revolving Credit Exposures of all Lenders (so calculated), as of the most recent Computation Date, exceeds one hundred five percent (105%) of the Aggregate Commitment or (B) the aggregate principal Dollar Amount of the total Revolving Credit Exposures denominated in Foreign Currencies (the Foreign Currency Exposure ) (so calculated), as of the most recent Computation Date, exceeds one hundred five percent (105%) of the Foreign Currency Sublimit, LMI shall, or shall cause the applicable Borrower to, in each case, immediately (or, in the case of an overdraw resulting solely from fluctuations in currency exchange rates as described in the foregoing clause (ii), within two (2) Business Days after receiving notice thereof from the Administrative Agent) repay Revolving Borrowings or cash collateralize LC Exposure in accordance with the procedures set forth in Section 2.06(j) , as applicable, in an aggregate principal amount sufficient to cause (x) the Dollar Amount of the total Revolving Credit Exposures (so calculated and netting the applicable LC Exposure against any such cash collateral) to be less than or equal to the Aggregate Commitment and (y) the Foreign Currency Exposure (so calculated and netting the applicable LC Exposure against any such cash collateral) to be less than or equal to the Foreign Currency Sublimit, as applicable.
SECTION 2.12 Fees . (a) LMI agrees to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue at the Applicable Rate for commitment fees (subject to adjustment as set forth in Section 2.13(f) ) on the average daily unused amount of the Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which such Revolving Commitment terminates. Accrued commitment fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the Effective Date; provided that any commitment fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. All commitment fees shall be payable in U.S. Dollars, shall be computed on the basis of a year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of this Section 2.12(a) , the unused amount of the Revolving Commitment of any Lender shall be deemed to be the excess of (b) the Revolving Commitment of such Lender over (i) the Revolving Credit Exposure of such Lender. Pricing Level 1 set forth in the definition of Applicable Rate shall apply during the period commencing on and including the Effective Date and ending on the date immediately preceding the delivery of Financial Statements covering the fiscal quarter of LMI and its Subsidiaries ending December 31, 2016 pursuant to Section 5.01(b) and the corresponding certificate pursuant to Section 5.01(c) .
(c) LMI agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving Loans on the average daily Dollar Amount of such Lenders LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lenders Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum separately agreed upon between LMI and each Issuing Bank, such rates not to exceed 0.25%, on the average daily Dollar Amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the
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Effective Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure, as well as each Issuing Banks standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable within 10 Business Days after written demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(d) LMI agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between LMI and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.13 Interest . (a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate for ABR Loans.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate, and the Loans comprising each Australian Dollar Borrowing shall bear interest at the Australian Bill Rate plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by any Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on written demand by the Administrative Agent, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Revolving Loan or Australian Dollar Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
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(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that (i) interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and (ii) interest for all Borrowings denominated in Australian Dollars and/or in Pounds Sterling shall be computed on the basis of a year of three hundred sixty-five (365) days, and in each case, and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate, Australian Bill Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
(f) If, as a result of any restatement of or other adjustment to the Financial Statements or for any other reason, LMI or the Administrative Agent determines that (x) the Consolidated Total Leverage Ratio as calculated by LMI as of any applicable date was inaccurate and (y) a proper calculation of the Consolidated Total Leverage Ratio would have resulted in higher pricing for such period, LMI shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders, 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 or any Lender), 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; provided that, if any such restatement or adjustment would have resulted in a lower pricing for any other period (each, a Lower Priced Period ), there shall be deducted from such additional interest and fees an amount equal to (but in no event greater than the amount of such additional interest and fees) the excess of interest and fees actually paid for such Lower Priced Period over the amount of interest and fees that should have been paid during such Lower Priced Period. LMIs obligations under this paragraph shall survive the termination of the Revolving Commitments and the repayment of all other Obligations hereunder for the limited period ending on the date that is one (1) year following the date upon which such termination and repayment occurred.
SECTION 2.14 Alternate Rate of Interest . If prior to the commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to the Required Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
(c) then the Administrative Agent shall give notice thereof to LMI and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the
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Administrative Agent notifies LMI and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective, (ii) if any such Borrowing Request requests a Eurocurrency Borrowing denominated in U.S. Dollars, such Borrowing shall be made as an ABR Borrowing and (iii) if any such Borrowing Request requests a Eurocurrency Borrowing denominated in a Foreign Currency, such Borrowing Request shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15 Increased Costs . (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;
(ii) impose on any Lender or any Issuing Bank or the London interbank market or the Australian Dollar market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) 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;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting or maintaining any Loan or of maintaining its obligation to make any such Loan (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency to a Borrowing denominated in any other Agreed Currency) or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency to a Borrowing denominated in any other Agreed Currency. if permitted hereunder) or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other Recipient hereunder, whether of principal, interest or otherwise (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency to a Borrowing denominated in any other Agreed Currency), then LMI will pay to such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of
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return on such Lenders or such Issuing Banks capital or on the capital of such Lenders or such Issuing Banks holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lenders or such Issuing Banks holding company could have achieved but for such Change in Law (taking into consideration such Lenders or such Issuing Banks policies and the policies of such Lenders or such Issuing Banks holding company with respect to capital adequacy and liquidity), then from time to time LMI will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lenders or such Issuing Banks holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to LMI and shall be conclusive absent manifest error. LMI shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lenders or such Issuing Banks right to demand such compensation; provided that LMI shall not be required to compensate a Lender or such Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies LMI of the Change in Law giving rise to such increased costs or reductions and of such Lenders or such Issuing Banks intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16 Break Funding Payments . In the event of (a) the payment of any principal of any Eurocurrency Loan or Australian Dollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan or Australian Dollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan or Australian Dollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(b) and is revoked in accordance therewith, but excluding any failure resulting from a notice from the Administrative Agent under Section 2.14 ) or (d) the assignment of any Eurocurrency Loan or Australian Dollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by LMI pursuant to Section 2.19 , then, in any such event, LMI shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurocurrency Loan or Australian Dollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate or the Australian Bill Rate (as applicable) that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
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continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurocurrency, eurodollar or Australian Dollar market (as applicable). A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to LMI and shall be conclusive absent manifest error. LMI shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
SECTION 2.17 Taxes; Payments Free of Taxes .
(a) Payments Free of Taxes . 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 law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17 ) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by the Loan Parties . The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Evidence of Payments . As soon as is reasonably practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17 , such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(d) Indemnification by the Loan Parties . The Loan Parties shall jointly and severally indemnify each Recipient, within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority provided, however, that the Loan Parties shall not be obligated to make payment to any Recipient pursuant to this Section 2.17 in respect of penalties, interest and other liabilities attributable to any Indemnified Taxes or Other Taxes, if (i) with respect to Indemnified Taxes paid or payable by such Recipient, written demand therefor has not been made by such Recipient within ninety (90) days from the date on which such Recipient received written notice of the imposition of Indemnified Taxes or Other
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Taxes by the relevant Governmental Authority, but only to the extent such penalties, interest and other similar liabilities are attributable to such failure or delay by the Recipient in making such written demand, or (ii) such penalties, interest and other liabilities are attributable to the gross negligence or willful misconduct of any Recipient or its Affiliates. A certificate as to the amount of such payment or liability delivered to LMI by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent, within 10 Business Days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lenders failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f) Status of Lenders . (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to LMI and the Administrative Agent, at the time or times reasonably requested by LMI or the Administrative Agent, such properly completed and executed documentation reasonably requested by LMI 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 LMI or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by LMI or the Administrative Agent as will enable LMI 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 set forth in Section 2.17(f)(ii)(A) , (ii)(B) and (ii)(D) below) shall not be required if in the Lenders 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:
(A) any Lender that is a U.S. Person shall deliver to LMI 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 LMI or the Administrative Agent), an executed of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
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(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to LMI 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 LMI or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed 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;
(2) in the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, an executed IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit C-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 any Borrower 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) an executed of IRS Form W-8BEN or W-8BEN-E, as applicable; or
(4) to the extent a Foreign Lender is not the beneficial owner, an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-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 C-4 on behalf of each such direct and indirect partner;
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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to LMI 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 LMI 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 LMI 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 LMI and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by LMI 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 LMI or the Administrative Agent as may be necessary for LMI and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lenders obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), FATCA shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify LMI and the Administrative Agent in writing of its legal inability to do so.
(g) Treatment of Certain Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the
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indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h) Survival . Each partys obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Revolving Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(i) Defined Terms . For purposes of this Section 2.17 , the term Lender includes any Issuing Bank and the term applicable law includes FATCA.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs .
(a) Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15 , 2.16 or 2.17 , or otherwise) prior to 12:00 noon, Local Time, on the date when due, in immediately available funds, without set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at (x) in the case of payments denominated in U.S. Dollars, its offices at 270 Park Avenue, New York, New York, and (y) in the case of payments denominated in a Foreign Currency, its Eurocurrency Payment Office for such Foreign Currency, except payments to be made directly to any Bank, as expressly provided herein and except that payments pursuant to Sections 2.15 , 2.16 , 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. Except as otherwise provided in this Agreement, all payments hereunder shall be made in U.S. Dollars. Notwithstanding the foregoing provisions of this Section, if, after the making of any Borrowing or LC Disbursement in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such Foreign Currency with the result that such Foreign Currency no longer exists or the Borrowers are not able to make payment to the Administrative Agent for the account of the Lenders in such Foreign Currency, then all payments to be made by the Borrowers hereunder in such Foreign Currency shall instead be made when due in U.S. Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations.
(b) Any proceeds of Collateral received by the Administrative Agent (i) not constituting a specific payment of principal, interest, fees or other sum payable under the Loan Documents shall be applied as specified by LMI or (ii) after an Event of Default has occurred
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and is continuing and the Administrative Agent so elects or the Required Lenders so direct, shall be applied ratably first , to pay that portion of the Obligations constituting fees, indemnities, expense reimbursements and other amounts payable to the Administrative Agent; second , to pay that portion of the Obligations constituting fees, indemnities, expense reimbursements and other amounts (other than principal, interest, commitment fees, Letter of Credit participation fees and Letter of Credit fronting fees) payable to the Lenders and the Issuing Banks; third , to pay that portion of the Obligations constituting accrued and unpaid commitment fees, Letter of Credit participation fees and Letter of Credit fronting fees and interest then due and payable on the Loans and other Obligations, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause third payable to them; fourth , to pay that portion of the Secured Obligations constituting unpaid principal on the Loans and unreimbursed LC Disbursements and any Secured Banking Services Obligations and Secured Swap Obligations then owing, ratably among the Lenders, the Issuing Banks, the Swap Providers and the Banking Services Providers in proportion to the respective amounts described in this clause fourth held by them; fifth , to the Administrative Agent for the benefit of the Issuing Banks and the Lenders, to cash collateralize that portion of the LC Exposure comprised of the aggregate undrawn amount of Letters of Credit in accordance with Section 2.06(j) ; and sixth , to pay any other Secured Obligation then owing, ratably among the Secured Parties in proportion to the respective amounts described in this clause sixth payable to them. Notwithstanding the foregoing, Secured Banking Services Obligations and Secured Swap Obligations 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 Banking Services Provider or Swap Provider. Each Banking Services Provider or Swap Provider not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VIII hereof for itself and its Affiliates as if a Lender party hereto. No Banking Services Provider or Swap Provider that obtains the benefits of this Section 2.18(b) , the Subsidiary Guarantee Agreement or any Collateral by virtue of the provisions hereof or of the Subsidiary Guarantee Agreement or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) 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 Agreement 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, Secured Banking Services Obligations or Secured Swap Obligations unless the Administrative Agent has received written notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Banking Services Provider or Swap Provider. Secured Swap Obligations that constitute Excluded Swap Obligations with respect to any Subsidiary Guarantor shall not be paid with amounts received from such Subsidiary Guarantor or its assets, but appropriate adjustments shall be made with respect to amounts received from other Loan Parties or their assets to preserve the allocation to Secured Swap Obligations otherwise set forth in this Section 2.18(b) .
(c) If at any time insufficient funds are received by the Administrative Agent from any Borrower (or from LMI as guarantor of the Obligations of such Borrower pursuant to Article X) and available to pay fully all amounts of principal, unreimbursed LC Disbursements,
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interest and fees then due from such Borrower hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(d) If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements of other Lenders to the extent necessary 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 Revolving Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). 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 each Borrower rights of set-off 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.
(e) Unless the Administrative Agent shall have received notice from LMI, on behalf of the applicable Borrower, prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that the applicable Borrower will not make such payment, the Administrative Agent may assume that the applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the applicable Borrower have not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency).
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.06(d) or (e) , 2.07(b) , 2.18(d) or 9.03(c) , then the Administrative Agent
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may, in its discretion and notwithstanding any contrary provision hereof, apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lenders obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clause (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders . (a) If any Lender requests compensation under Section 2.15 , 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 2.17 , then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.15 or 2.17 , as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15 , 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 2.17 , or if any Lender becomes Defaulting Lender or a Non-Consenting Lender, then, in each case, LMI 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 Section 9.04 ), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.15 or 2.17 ) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrowers shall have received the prior written consent of the Administrative Agent (and if a Revolving Commitment is being assigned, each Issuing Bank), in each case to the extent such consent would be required pursuant to Section 9.04(b), (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or such Borrower (in the case of all other amounts), (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17 , such assignment will result in a reduction in such compensation or payments and (iv) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling such Borrower to require such assignment and delegation cease to apply.
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SECTION 2.20 Defaulting Lenders .
Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) or Section 2.12(b) ;
(b) the Revolving Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02 ); provided that (i) such Defaulting Lenders Revolving Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans or LC Disbursements may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lenders consent.
(c) if any LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only (x) to the extent that such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lenders Revolving Credit Exposure to exceed its Revolving Commitment and (y) if the conditions set forth in Section 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, LMI shall, within one Business Day following notice by the Administrative Agent, cash collateralize for the benefit of the applicable Issuing Bank only the Borrowers obligations corresponding to such Defaulting Lenders LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if LMI cash collateralizes any portion of such Defaulting Lenders LC Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lenders LC Exposure during the period such Defaulting Lenders LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders Applicable Percentages; and
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(v) if all or any portion of such Defaulting Lenders LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lenders LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lenders then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by LMI in accordance with Section 2.20(c) , and LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein).
In the event that the Administrative Agent, LMI, and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lenders Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
SECTION 2.21 Expansion Option; Incremental Facilities .
(a) LMI may from time to time elect to increase the Revolving Commitments and/or enter into one or more tranches of term loans (each, an Incremental Term Loan ), in each case in a minimum amount of $10,000,000 (or the remaining amount available under this Section 2.21 ) and an integral multiple of $5,000,000 in excess thereof so long as, after giving effect thereto, the aggregate amount of all such Revolving Commitment increases and all such Incremental Term Loans does not exceed $200,000,000 (such that the aggregate amount of all Revolving Commitments and Incremental Term Loans hereunder, at any time, does not exceed $600,000,000). Each request from LMI pursuant to this Section 2.21 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment and/or Incremental Term Loan. LMI may arrange for any such Revolving Commitment increase or Incremental Term Loan to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment or to participate in such Incremental Term Loans, an Increasing Lender ), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an Augmenting Lender and, together with each Increasing Lender, collectively, the Additional Lenders ), to increase their existing Revolving Commitments, or to participate in such Incremental Term Loans, or to extend Revolving Commitments, as the case may be; provided , that (i) each Augmenting Lender shall be subject to the approval of LMI and the Administrative Agent and, except in the case of an Incremental Term Loan, each Issuing Bank, which approvals shall not be unreasonably withheld, delayed or conditioned and (ii) (A) in the case of an Increasing Lender, LMI and such Increasing Lender
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execute an agreement substantially in the form of Exhibit E, and (B) in the case of an Augmenting Lender, LMI and such Augmenting Lender execute an agreement substantially in the form of Exhibit F hereto. Nothing contained in this Section 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder or to provide any Incremental Term Loan at any time. No existing Lender shall have any obligation or be required to provide any Revolving Commitment increase or participate in any Incremental Term Loan unless it expressly so agrees. No consent of any Lender (other than the Additional Lenders participating in such Revolving Commitment increase or Incremental Term Loan) shall be required for any such increase or Incremental Term Loan pursuant to this Section 2.21 . The terms of the additional Revolving Commitments and Incremental Term Loans, the Applicable Rates, and the termination date of such Revolving Commitments and maturity dates of such Incremental Term Loans, shall all be consistent with the terms hereof; provided that the upfront fees paid in connection therewith shall be as agreed by LMI, the Additional Lenders and the Administrative Agent.
(b) Revolving Commitment increases, new Revolving Commitments and Incremental Term Loans created pursuant to this Section 2.21 shall become effective on the date agreed by LMI, the Administrative Agent and the relevant Additional Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender), new Revolving Commitment or Incremental Term Loan shall become effective under this paragraph unless (i) on the proposed date of the effectiveness of such Revolving Commitment increase, new Revolving Commitment or Incremental Term Loan, (A) the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and immediately after giving effect to such Revolving Commitment increase, new Revolving Commitment or Incremental Term Loan or shall have been waived by the Required Lenders, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of LMI and (B) the Borrowers shall be in pro forma compliance with each financial covenant set forth in Section 6.10 , recomputed (1) as if such Revolving Commitment increase, new Revolving Commitment or Incremental Term Loan (and any drawings of such Revolving Commitment increase or new Revolving Commitment or funding of Incremental Term Loans and the application of proceeds thereof to the repayment of any other Indebtedness) had occurred on the first day of the most recent Reference Period preceding the date thereof for which the Borrowers have delivered Financial Statements, (2) with Indebtedness measured as of the date of and immediately after giving effect to any funding in connection with such Revolving Commitment increase, new Revolving Commitment or Incremental Term Loan (and any drawings of such Revolving Commitment increase or new Revolving Commitment, or funding of Incremental Term Loans, and the application of proceeds thereof to the repayment of any other Indebtedness) and (3) with Adjusted EBITDA measured on a Pro Forma Basis for the Reference Period then most recently ended for which LMI has delivered Financial Statements, and (ii) the Administrative Agent shall have received documents (including legal opinions), board resolutions and other customary closing certificates as reasonably required by the Administrative Agent and otherwise consistent with those delivered on the Effective Date as to the corporate power and authority of each of the Borrowers to borrow hereunder (and of the Subsidiary Guarantors to Guarantee such obligations and of applicable Loan Parties to grant liens on Collateral as required hereunder), immediately after giving effect to such Revolving Commitment increase, new Revolving Commitment or Incremental Term Loan.
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(c) On the effective date of any increase in the Revolving Commitments or any new Revolving Commitment, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such Revolving Commitment increase or new Revolving Commitment and the use of such amounts to make payments to such other Lenders, each Lenders portion of the outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) each Borrower shall be deemed to have repaid and reborrowed all of its respective outstanding Revolving Loans as of the date of any increase in the Revolving Commitments or any new Revolving Commitment (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by LMI, in accordance with the requirements of Section 2.03 ). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan or each Australian Dollar Loan, shall be subject to indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day of the related Interest Periods.
(d) The Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and any other Term Loans hereunder, (ii) shall not mature earlier than the Maturity Date (but may have amortization prior to such date, as agreed by LMI, the Lenders participating in such Incremental Term Loans and the Administrative Agent), (iii) shall have a weighted average life to maturity that is no earlier than the weighted average life to maturity of the then existing Term Loans hereunder, and (iv) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans and Revolving Loans; provided , that (x) the terms and conditions applicable to any Incremental Term Loan maturing after the Maturity Date may provide for material additional, or different, financial covenants or other covenants and/or prepayment requirements applicable only during periods after the Maturity Date, and (y) any interest rate margins, upfront fees, original issue discounts ( OID ), interest rate floors and any customary arrangement or commitment fees applicable to the Incremental Term Loans shall be determined by the Borrowers and the applicable Additional Lenders.
(e) Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an Incremental Term Loan Amendment ) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such Incremental Term Loan, if any, each Augmenting Lender participating in such Incremental Term Loan, if any, and the Administrative Agent. Each Incremental Term Loan Amendment may, without the consent of any other Lenders (except to the extent, if any, required pursuant to the provisos in Section 9.02(b) ), 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, to effectuate and implement the provisions of this Section 2.21 . Nothing contained in this Section 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder or to provide Incremental Term Loans at any time.
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SECTION 2.22 Judgment Currency . If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due from any Borrower hereunder in the currency expressed to be payable herein (the specified currency ) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agents main New York City office on the Business Day preceding that on which final, non-appealable judgment is given. The obligations of each Borrower in respect of any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Lender or the Administrative Agent, as the case may be, in the specified currency, each Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Lender or the Administrative Agent, as the case may be, in the specified currency and (b) any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under Section 2.18, such Lender or the Administrative Agent, as the case may be, agrees to remit such excess to such Borrower.
ARTICLE III.
Representations and Warranties
Each Domestic Borrower represents and warrants, and to the extent that such representation is applicable to a Foreign Borrower, such Foreign Borrower represents and warrants, to the Lenders that:
SECTION 3.01 Organization; Powers . LMI and each of its Subsidiaries is duly organized or incorporated, validly existing and in good standing (or the equivalent thereof in any jurisdiction outside the United States) under the laws of the jurisdiction of its organization or incorporation, has all requisite organizational power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
SECTION 3.02 Authorization; Enforceability . The Transactions are within each Borrowers organizational powers and have been duly authorized by all necessary organizational and, if required, equityholder action. This Agreement has been duly executed and delivered by each Borrower and constitutes a legal, valid and binding obligation of each Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
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SECTION 3.03 Governmental Approvals; No Conflicts . The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate (i) any applicable law or regulation in any material respect or (ii) the charter, by-laws or other organizational documents of any Borrower or any Subsidiary or (iii) any order of any Governmental Authority in any material respect, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Borrower or any Subsidiary or its assets, or give rise to a right thereunder to require any payment to be made by any Borrower or any Subsidiary, to the extent that such violation, default or right to require a payment could reasonably be expected, to have Material Adverse Effect and (d) will not result in the creation or imposition of any Lien on any asset of any Borrower or any Subsidiary other than pursuant to the Loan Documents.
SECTION 3.04 Financial Condition; No Material Adverse Change .
(a) LMI has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2015 and December 31, 2014, audited by Deloitte & Touche LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 30, 2016, certified by a Financial Officer of LMI. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of LMI and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to normal year-end and audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.
(b) Since December 31, 2015, there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of LMI and its Subsidiaries, taken as a whole.
SECTION 3.05 Properties . (a) Each Borrower and each Subsidiary has good title to, or valid leasehold interests in, all its real and personal property material to its business, free of all Liens other than those permitted by Section 6.02 .
(b) Each Borrower and each Subsidiary owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other intellectual property material to its business as currently conducted, and, to the knowledge of LMI, the use thereof by the Borrowers and their Subsidiaries in their respective businesses as currently conducted does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06 Litigation and Environmental Matters . (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any Borrower, threatened against or affecting any Borrower or any Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions or, as of the Effective Date, the Merger.
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(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither any Borrower nor any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.
SECTION 3.07 Compliance with Laws and Agreements . Each Borrower and each Subsidiary is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08 Investment Company Status . No Borrower nor any Subsidiary is required to be registered as an investment company as defined in, or subject to regulation under, the Investment Company Act of 1940.
SECTION 3.09 Taxes . Each Borrower and each Subsidiary has timely filed or caused to be filed all federal and material state and local Tax returns and reports required to have been filed and has paid or caused to be paid all material Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10 ERISA . No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87, as amended, or any successor thereto) did not, as of the date of the most recent Financial Statements reflecting such amounts, exceed by more than $40,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.11 Disclosure . Each Borrower has disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the other reports, financial statements, certificates or other information
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furnished by or on behalf of the Borrowers to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (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, each Borrower represents only that such information was prepared in good faith based upon assumptions believed by such Borrower to be reasonable at the time such projected financial information was furnished.
SECTION 3.12 Anti-Corruption Laws and Sanctions . Each Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by such Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and each Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of each Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in any Borrower being designated as a Sanctioned Person. None of (a) the Borrowers, any Subsidiary or any of their directors, executive officers or Financial Officers, or (b) to the knowledge of any Borrower, any officer (other than an executive officer or Financial Officer) or employee or agent of any Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds, other Transactions or the Merger contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions.
SECTION 3.13 Subsidiaries . As of the date of this Agreement, Schedule 3.13 is a complete list of each Subsidiary of LMI and each such Subsidiarys jurisdiction of incorporation or organization.
SECTION 3.14 Federal Regulations . No Borrower nor any Subsidiary is engaged or will engage in any activities, nor shall use any portion of the proceeds of the Loans be used for any purpose, which in either case violate or are inconsistent with the provisions of Regulations U and X of the Board as now and from time to time hereafter in effect.
SECTION 3.15 Security Interest in Collateral . The provisions of this Agreement and the other Loan Documents create legal and valid Liens on all the Collateral in favor of the Administrative Agent, for the benefit of the Secured Parties, and, upon completion of all filings and recordings required pursuant to the applicable Collateral Documents, such Liens constitute perfected and continuing Liens on the Collateral, securing the Secured Obligations, enforceable against the applicable Loan Party and all third parties, and having priority over all other Liens on the Collateral except in the case of (a) Permitted Encumbrances and Liens permitted pursuant to Section 6.02, to the extent any such Permitted Encumbrances or other permitted Liens would have priority over the Liens in favor of the Administrative Agent pursuant to any applicable law and (b) Liens perfected only by possession (including possession of any certificate of title), to the extent the Administrative Agent has not obtained or does not maintain possession of such Collateral.
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SECTION 3.16 Employment Matters . As of the Effective Date, there are no strikes or lockouts against any Borrower or any Subsidiary pending or, to the knowledge of any Borrower, threatened. Except as could not reasonably be expected to have a Material Adverse Effect, (a) the hours worked by and payments made to employees of the Borrowers and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters, and (b) all payments due from any Borrower or any Subsidiary, or for which any claim may be made against any Borrower or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Borrower or such Subsidiary.
SECTION 3.17 No Default . No Default or Event of Default has occurred and is continuing or would result from consummation of the Transactions and the Merger.
SECTION 3.18 Reserved .
SECTION 3.19 No Burdensome Restrictions . No Borrower nor any Subsidiary is party to any agreement, or subject to any provision of law, compliance with which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.20 EEA Financial Institutions . No Loan Party is an EEA Financial Institution.
ARTICLE IV.
Conditions
SECTION 4.01 Effective Date . The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective, and this Agreement shall not be effective to amend and restate the Existing Credit Agreement, until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02 ), other than the items specified in the Post-Closing Letter:
(a) Loan Documents . The Administrative Agent (or its counsel) shall have received from each party to the Loan Documents either (i) a counterpart of each Loan Document to which such Person is a party, signed on behalf of such Person or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of each Loan Document to which such Person is a party) that such Person has signed a counterpart of each such Loan Document.
(b) Collateral Documents . The Administrative Agent shall have received all Collateral Documents required to be executed and/or delivered pursuant to the Security Agreement, including such UCC-1 Financing Statements, intellectual property filings and other similar or applicable filings as will be necessary or desirable to provide the Administrative Agent with a perfected, first priority security interest in the Collateral under the Security Agreement, in each case, subject to the requirements, limitations and exceptions set forth in the Security Agreement and the other Collateral Documents, if any.
(c) Updating of Compliance Certificate . The Administrative Agent and the Lenders shall have received an updated, duly completed compliance certificate signed by a Financial Officer of the Company as required by Section 5.01(c) with respect to the financial statements delivered for the Reference Period ending as of September 30, 2016.
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(d) Merger . The Merger will be consummated pursuant to the Merger Agreement, and no provision of the Merger Agreement shall have been amended, consent to or waived in any manner that is materially adverse to the Lenders without the prior written consent of the Administrative Agent.
(e) Lien Searches . The Administrative Agent (or its counsel) shall have received from each Loan Party copies of Uniform Commercial Code search reports listing all effective financing statements filed against such Loan Party, with copies of such financing statements, as well as copies of such tax, litigation, judgment, bankruptcy, intellectual property and any other search reports as the Administrative Agent may reasonably request.
(f) Payoff Letters . The Administrative Agent shall have received payoff letters in form and substance reasonably satisfactory to the Administrative Agent evidencing repayment in full of all Indebtedness, if any, other than Indebtedness permitted by Section 6.01 , termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing, or with authorization for the Administrative Agent to file Uniform Commercial Code and other termination statements with respect thereto, in each case subject only to repayment in full of such Indebtedness in accordance with the terms of the applicable payoff letters.
(g) Legal Opinions . The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Latham & Watkins LLP and other applicable local counsel (if any), counsel for the Loan Parties, covering such other matters relating to the Loan Parties, the Loan Documents and the Transactions as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions.
(h) Organizational Documents and Certificates . The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing (or the equivalent thereof in any jurisdiction outside the United States) of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents and the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(i) Representations and Warranties . The representations and warranties of each Borrower set forth in this Agreement shall be true and correct in all material respects (or in all respects, if already qualified by concepts of materiality) on and as of the Effective Date (or, to the extent any such representation or warranty is expressly stated to have been made as of a specific earlier date, on and as of such earlier date).
(j) Officer s Certificate . The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of
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LMI, (A) confirming compliance with the conditions set forth in paragraph (i) of this Section 4.01 and in paragraphs (a) and (b) of Section 4.02 , and (B) certifying (with supporting calculations and corresponding pro forma financial statements), in form and substance reasonably satisfactory to the Administrative Agent, that each Borrower is and will be in pro forma compliance with all financial covenants set forth in Section 6.10 , including immediately after giving effect to the Merger and the incurrence of all Indebtedness in connection therewith.
(k) Fees and Expenses . The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Fee Letter on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including counsel to the Administrative Agent) required to be reimbursed or paid by any Borrower hereunder.
(l) Financial Statements . The Administrative Agent shall have received (i) the audited consolidated financial statements of LMI and its Subsidiaries for the two (2) most recent fiscal years ended prior to the Effective Date as to which such financial statements have been filed with the SEC and (ii) satisfactory unaudited interim consolidated financial statements of LMI and its Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to the foregoing clause (i), as to which such financial statements have been filed with the SEC.
(m) Know Your Customer, etc . The Administrative Agent and the Lenders shall have received all documentation and other information reasonably requested by the Lenders or the Administrative Agent at least five (5) Business Days prior to the Effective Date under applicable know your customer and anti-money laundering rules and regulations, including the USA Patriot Act.
(n) Solvency Certificate . The Administrative Agent and the Lenders shall have received a written certification from a Financial Officer of LMI that, both before and immediately after giving effect to the Merger and the incurrence of all Indebtedness in connection therewith, and including all Indebtedness of each Borrower and the Subsidiaries outstanding on the Effective Date (including, for the avoidance of doubt, the aggregate amount of Loans to be borrowed hereunder on the Effective Date), LMI and its Subsidiaries, on a consolidated basis, are and will be Solvent.
(o) Governmental and Third Party Approvals . All governmental and third party filings, approvals and authorizations necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with (i) the Transactions and the consummation of the Transactions, and (ii) the continuing operations of the Borrowers and their Subsidiaries (including GetGo, Inc., after giving effect to the Merger), shall have been duly obtained or made and shall be in full force and effect.
The Administrative Agent shall notify LMI and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02 ) at or prior to 3:00 p.m., New York City time, on February 28, 2017 (and, in the event such conditions are not so satisfied or waived, the Revolving Commitments shall terminate at such time).
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SECTION 4.02 Each Credit Event . The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of each Borrower set forth in this Agreement shall be true and correct in all material respects (or in all respects, if already qualified by concepts of materiality) on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by each Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V.
Affirmative Covenants
Until the Revolving Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated, in each case, without any pending draw, and all LC Disbursements shall have been reimbursed, each Domestic Borrower covenants and agrees with the Lenders, and to the extent applicable to a Foreign Borrower, such Foreign Borrower covenants and agrees, that:
SECTION 5.01 Financial Statements; Ratings Change and Other Information . LMI will furnish to the Administrative Agent, for Administrative Agent to furnish to each Lender, including (except with respect to information delivered pursuant to clauses (c), (d) and (f) below) to their Public-Siders:
(a) within 90 days after the end of each fiscal year of LMI, its audited consolidated balance sheet and related 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 for the previous fiscal year, all reported on by Deloitte & Touche LLP or other independent public accountants of recognized national standing (without a going concern or like qualification commentary or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of LMI and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of LMI, its consolidated balance sheet and related statements of operations,
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stockholders equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of LMI and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end and audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a compliance certificate signed by a Financial Officer of LMI (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.10 , and (iii) including, as applicable, any updated versions of Exhibits to the Security Agreement, as required by Section 4.16 of the Security Agreement;
(d) [ reserved ];
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by any Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Borrower or any Subsidiary, or, in compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02 Notices of Material Events . LMI will furnish to the Administrative Agent, for the Administrative Agent to furnish to each Lender, prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting any Borrower or any Subsidiary thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of any Borrower or any Subsidiary in an aggregate amount exceeding $40,000,000; and
(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
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Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of LMI setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Copies of financial statements and other notices required under Section 5.01 or Section 5.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which posted to an electronic system or intranet or internet website to which the Administrative Agent and each Lender have access.
SECTION 5.03 Existence; Conduct of Business . LMI will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any sale, lease, transfer, disposition, merger, consolidation, liquidation or dissolution permitted under Section 6.03 .
SECTION 5.04 Payment of Obligations . LMI will, and will cause each of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) LMI or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05 Maintenance of Properties; Insurance . LMI will, and will cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations. LMI will furnish to the Administrative Agent, upon its request, information in reasonable detail as to the insurance so maintained. LMI shall promptly deliver to the Administrative Agent endorsements (x) to all property insurance policies covering Collateral naming the Administrative Agent as lender loss payee, and (y) to all general liability and umbrella liability policies naming the Administrative Agent an additional insured, which endorsements shall be in effect at all times ( provided that certain insurance endorsements may be delivered after the Effective Date in accordance with the Post-Closing Letter). In the event LMI or any Subsidiary at any time hereafter shall fail to obtain or maintain any of the policies or insurance required herein or to pay any premium in whole or in part relating thereto, then the Administrative Agent, without waiving or releasing any obligations or resulting Default hereunder, may at any time or times thereafter (but shall be under no obligation to do so) obtain and maintain such policies of insurance and pay such premiums and take any other action with respect thereto which the Administrative Agent reasonably deems advisable. All sums so disbursed by the Administrative Agent shall constitute part of the Obligations, payable as provided in this Agreement. LMI will furnish to the Administrative Agent prompt written notice of any casualty or other insured damage to any material portion of the Collateral or the commencement of any action or proceeding for the taking of any material portion of the Collateral or interest therein under power of eminent domain or by condemnation or similar proceeding.
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SECTION 5.06 Books and Records; Inspection Rights . LMI will, and will cause each of its Subsidiaries to, keep proper books of record and account in which entries are made of all dealings and transactions in relation to its business and activities in accordance with GAAP. LMI will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested; provided that unless an Event of Default has occurred and is continuing, (a) such visits and inspections shall be no more frequent that once per calendar year, and (b) LMI shall not be required to pay the costs and expenses of any Lender visit or inspection unless it is concurrent with the Administrative Agent visit and inspection.
SECTION 5.07 Compliance with Laws . LMI will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Each Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance in all material respects by each Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.08 Use of Proceeds and Letters of Credit . The proceeds of the Loans will be used only (i) to refinance any loans and letters of credit outstanding under the Existing Credit Agreement, to the extent applicable, and (ii) for general corporate purposes of the Borrowers and their respective Subsidiaries, including to finance costs and expenses incurred or to be incurred in connection with the Merger. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. The Borrowers will not request any Borrowing or issuance of any Letter of Credit, and the Borrowers shall not use, and shall procure that their respective Subsidiaries and their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or draw on any Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
SECTION 5.09 Additional Borrowers; Removal of Borrowers .
(a) Additional Borrowers . (i) If after the Effective Date, LMI desires another Subsidiary to become a Borrower hereunder, LMI shall, or shall cause such Subsidiary to: (i) provide at least five (5) Business Days prior notice to the Administrative Agent; (ii) deliver to the Administrative Agent a Borrower Accession Agreement duly executed by all parties thereto; (iii) satisfy all of the conditions with respect thereto set forth in this Section 5.09(a) in form and substance reasonably satisfactory to the Administrative Agent; (iv) deliver to the Administrative
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Agent all documentation and other information reasonably requested by the Lenders or the Administrative Agent under applicable know your customer and anti-money laundering rules and regulations, including the USA Patriot Act and (v) obtain the consent of each Lender that such Additional Borrower is acceptable as a Borrower under the Loan Documents.
(ii) Each such Subsidiarys addition as a Borrower shall also be conditioned upon the Administrative Agent having received (A) a certificate signed by a duly authorized officer of such Subsidiary, dated the date of such Borrower Accession Agreement certifying that: (1) the representations and warranties contained in each Loan Document are true and correct in all material respects on and as of such date (or in all respects if already qualified by concepts of materiality), before and after giving effect to such Subsidiary becoming an Additional Borrower and as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date, or in all respects if already qualified by concepts of materiality), and (2) no Default or Event of Default has occurred and is continuing as of such date or would occur as a result of such Subsidiary becoming an Additional Borrower; and (B) any such additional documents (including legal opinions) and certificates pertaining to the Additional Borrower as the Administrative Agent or its counsel received on the Effective Date with respect to LMI, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(iii) Upon such Subsidiarys addition as an Additional Borrower, such Subsidiary shall be deemed to be a Borrower and specifically a Domestic Borrower or a Foreign Borrower, as applicable, hereunder. The Administrative Agent shall promptly notify each applicable Lender upon each Additional Borrowers addition as a Borrower hereunder and shall, upon request by any Lender, provide such Lender with a copy of the executed Borrower Accession Agreement. With respect to the accession of any Additional Borrower, each Lender shall be responsible for making a determination as to whether it is capable of making advances to such Additional Borrower without the incurrence of withholding taxes, provided that the Borrowers and their tax advisors shall cooperate in all reasonable respects with the Administrative Agent and such Lender in connection with any analysis necessary for such Lender to make such determination and the Borrowers shall bear all costs and expenses incurred in connection with such determination pursuant to the terms and conditions set forth in Section 9.03(a) . In the case of the proposed addition of any new Borrower seeking to borrow in any currency that is not expressly listed in the definition of Agreed Currency at such time, the Borrowers, the Agent and the Lenders shall enter into an amendment to this Agreement to address any new interest rates, borrowing procedures and any other necessary changes to this Agreement, in each case with respect to Borrowings in such additional currency, to the extent such an amendment is required by the Administrative Agent in its sole discretion.
(b) Removal of Borrowers . So long as no Default or Event of Default has occurred and is then continuing, and subject to compliance with Section 5.10 , LMI may remove any Subsidiary of LMI as a Borrower under this Agreement that has no Loans advanced to it or Letters of Credit issued for its account (as a Borrower and/or applicant) outstanding at the time of such removal by providing written notice of such proposed removal to the Administrative
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Agent which shall promptly give the Lenders notice of such removal. After the receipt of such written notice by the Administrative Agent, and effective upon such Subsidiary becoming a Subsidiary Guarantor to the extent required by Section 5.10 (or if not required to become a Subsidiary Guarantor effective upon the date of such notice from the Borrower), such Subsidiary shall cease to be a Borrower hereunder. Once removed pursuant to this Section 5.09(b) , such Subsidiary shall have no right to borrow or request the issuance of Letters of Credit under this Agreement unless LMI provides notice as required pursuant to Section 5.09(a) of the request again to add such Subsidiary as an Additional Borrower hereunder and such Subsidiary complies with the conditions set forth in Section 5.09(a) to become an Additional Borrower hereunder.
(c) LMI Ireland Post-Closing Requirement . No later than 90 days after the Effective Date (or such later date as the Administrative Agent may agree), LMI shall cause LMI Ireland to become an Additional Borrower pursuant to and in accordance with Section 5.09(a) .
SECTION 5.10 Additional Subsidiaries .
(a) Additional Domestic Subsidiaries . In the event that after the Effective Date (i) any Borrower acquires or creates any Domestic Subsidiary (other than an Excluded Subsidiary) or (ii) any Domestic Subsidiary ceases to be an Excluded Subsidiary, the Borrowers shall promptly (and in any event within thirty (30) days, or such longer time as the Administrative Agent may agree) after the acquisition or creation of such Subsidiary, or the change in such Subsidiarys status as an Excluded Subsidiary, cause such Subsidiary to become a Subsidiary Guarantor by delivering to the Administrative Agent either (x) a Subsidiary Guarantee Agreement, if such Domestic Subsidiary is the first Domestic Subsidiary to become a Subsidiary Guarantor hereunder or (y) a joinder to the applicable Subsidiary Guarantee Agreement (in the form contemplated thereby), in either case duly executed by such Subsidiary, pursuant to which such Subsidiary agrees to be bound by the terms and provisions of such Subsidiary Guarantee Agreement, and such Subsidiary Guarantee Agreement or joinder, as applicable, shall be accompanied by such additional documents (including legal opinions) and certificates pertaining to such Subsidiary as the Administrative Agent or its counsel received on the Effective Date with respect to LMI, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(b) Additional Foreign Subsidiaries . In the event that after the Effective Date (i) any Borrower acquires or creates any first tier Foreign Subsidiary (other than an Excluded Subsidiary) or (ii) any first tier Foreign Subsidiary ceases to be an Excluded Subsidiary, the Borrowers shall promptly upon notice from the Administrative Agent at the direction of the Required Lenders (and in any event within thirty (30) days after such notice, or such longer time as the Administrative Agent may agree) shall cause such Subsidiary to become a Subsidiary Guarantor, by delivering to the Administrative Agent either (x) a Subsidiary Guarantee Agreement, if such Foreign Subsidiary is the first Foreign Subsidiary to become a Subsidiary Guarantor hereunder, or (y) a joinder to the applicable Subsidiary Guarantee Agreement (in the form contemplated thereby), duly executed by such Subsidiary, pursuant to which such Subsidiary agrees to be bound by the terms and provisions of such Subsidiary Guarantee Agreement, and such joinder shall be accompanied by such additional documents (including legal opinions) and certificates pertaining to such Subsidiary as the Administrative Agent or its counsel received on the Effective Date with respect to Guarantors that are Foreign Subsidiaries, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
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SECTION 5.11 Additional Collateral; Further Assurances .
(a) LMI will, and will cause each other Borrower and each Subsidiary Guarantor to, cause all of its personal property constituting Collateral (but subject to the exceptions expressly contained in the Collateral Documents) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in any case to Liens permitted by Section 6.02 . The requirements in this Section 5.11(a) shall be satisfied within forty five (45) days (or such longer time as the Administrative Agent may agree) after any Person becomes a Loan Party hereunder.
(b) Without limiting the foregoing, LMI will, and will cause each other Borrower and each Subsidiary Guarantor to, promptly execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements and other documents and such other actions or deliveries of the type required by Section 4.01 , as applicable), which may be required by this Agreement, the terms of the Collateral Documents or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, with all such expenses to be reimbursed in accordance with the provisions in Section 9.03 .
SECTION 5.12 Status of Obligations . In the event that any Loan Party shall at any time issue or have outstanding any Subordinated Indebtedness (to the extent permitted under this Agreement), LMI shall take or cause such other Loan Party to take all such actions as shall be necessary to cause the Secured Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated Indebtedness and to enable the Administrative Agent on behalf of the Lenders to have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness. Without limiting the foregoing, the Secured Obligations are hereby designated as senior indebtedness and as designated senior indebtedness and words of similar import under and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated Indebtedness in order that the Administrative Agent on behalf of the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.
ARTICLE VI.
Negative Covenants
Until the Revolving Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of
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Credit have expired or terminated, in each case, without any pending draw, and all LC Disbursements shall have been reimbursed, each Borrower covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness . No Borrower will, nor will it permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and refinancings, extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof by an amount greater than an amount equal to the accrued and unpaid interest and any premium thereon paid in connection with such refinancing, extension, renewal or replacement and other reasonable amounts, paid and fees and expenses reasonably incurred, in connection with such refinancing, extension, renewal or replacement;
(c) Indebtedness of any Borrower to any Subsidiary and of any Subsidiary to a Borrower or any other Subsidiary;
(d) Guarantees by any Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of any Borrower or any other Subsidiary;
(e) Indebtedness of any Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with, or incurred to finance, the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and refinancings, extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof by an amount greater than an amount equal to the accrued and unpaid interest and any premium thereon paid in connection with such refinancing, extension, renewal or replacement and other reasonable amounts, paid and fees and expenses reasonably incurred, in connection with such refinancing, extension, renewal or replacement; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not exceed $62,500,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after the date hereof or assumed in connection with any Acquisition after the date hereof and refinancings, extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof by an amount greater than an amount equal to the accrued and unpaid interest and any premium thereon paid in connection with such refinancing, extension, renewal or replacement and other reasonable amounts, paid and fees and expenses reasonably incurred, in connection with such refinancing, extension, renewal or replacement; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary or such Acquisition was closed and is not created in contemplation of or in connection with such Person becoming a Subsidiary or such Acquisition, as applicable, and (ii) the aggregate principal amount of Indebtedness permitted by this clause (f) shall not exceed $62,500,000 at any time outstanding;
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(g) Indebtedness of any Borrower or any Subsidiary as an account party in respect of trade letters of credit;
(h) Indebtedness constituting bank guarantees, bankers acceptances, warehouse receipts or similar instruments, in each case, issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits (including with respect to immediate family members of employees, directors or members of management) or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims or obligations referred to in clause (i) below;
(i) obligations in respect of surety, stay, customs and appeal bonds, performance bonds and performance and completion guarantees and similar obligations provided by any Borrower or any Subsidiary, in each case, issued or created in the ordinary course of business;
(j) Indebtedness consisting of the financing of insurance premiums;
(k) Indebtedness representing deferred compensation, severance and health and retirement benefits or the equivalent thereof to employees, directors, management and consultants of any Borrower or any Subsidiary incurred in the ordinary course of business;
(l) Indebtedness consisting of obligations with respect to indemnification, the adjustment of the purchase price (including customary earnouts) or similar adjustments incurred in connection with a Permitted Acquisition or any other Investment or disposition of assets permitted under this Agreement;
(m) 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;
(n) Indebtedness in respect of credit card processing agreements, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts and in the ordinary course of business;
(o) Indebtedness under Swap Agreements permitted pursuant to Section 6.05 ;
(p) any Indebtedness incurred to finance, or assumed in connection with, a Permitted Acquisition so long as: (A) both before and immediately after giving effect to the incurrence or assumption of such Indebtedness and the consummation of such Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing; and (B) any Indebtedness incurred or assumed under this Section 6.01(p) shall not (i) mature or require any scheduled payments of principal prior to the date that is six months following the latest maturity date of the Revolving Commitments or any Loans (including any Term Loans) hereunder or have a weighted average life to maturity less than any Term Loans hereunder, in each case, at the time
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such Indebtedness is incurred or assumed, or (ii) have mandatory prepayment, redemption or offer to purchase events that are earlier than the Maturity Date (unless such mandatory prepayment, redemption or offer to purchase event results from a sale, transfer or other disposition of the collateral which secures such Indebtedness); provided, however , that Indebtedness in an aggregate principal amount not to exceed $10,000,000 at any time outstanding that is assumed in connection with (but not incurred in contemplation of) a Permitted Acquisition under this Section 6.01(p) , shall be permitted hereunder notwithstanding that such assumed Indebtedness does not satisfy or comply with the requirements of preceding clauses (B)(i) and (ii) of this Section 6.01(p) ;
(q) other unsecured Indebtedness (and including for this purpose, any preferred stock of Subsidiaries that is not owned by Subsidiaries) will be permitted so long as, both before and immediately after giving effect to incurrence of such unsecured Indebtedness, (i) no Event of Default shall have occurred and be continuing and (ii) the Borrowers shall be in pro forma compliance with the financial covenants set forth in Section 6.10 as of the most recently ended Reference Period for which the Borrowers have delivered Financial Statements; and provided, further , that such Indebtedness: (a) does not mature or require any scheduled payments of principal prior to the date that is six months following the latest maturity date of the Revolving Commitments or any Loans (including any Term Loans) hereunder or have a weighted average life to maturity less than any Term Loans hereunder, in each case, at the time such Indebtedness is issued; (b) does not have mandatory prepayment, redemption or offer to purchase events that are earlier than the Maturity Date; (c) does not have covenants that are more restrictive than the covenants under this Agreement; (d) is not guaranteed by any Subsidiary of LMI other than Subsidiary Guarantors; and (e) the terms, conditions and covenants of such Indebtedness shall be such as are customary for such unsecured Indebtedness of such type (as determined by the board of directors of LMI, or a committee thereof, in good faith) (the foregoing, the Permitted Unsecured Debt ); and
(r) other Indebtedness in an aggregate principal amount not exceeding $15,000,000 at any time outstanding.
Notwithstanding the foregoing, no Subsidiary that is a Massachusetts Securities Corporation shall create, incur, assume or permit to exist any Indebtedness except any Indebtedness permitted under clauses (m) and (n) of this Section 6.01 .
SECTION 6.02 Liens . No Borrower will, nor will it permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of any Borrower or any Subsidiary existing on the date hereof and set forth in Schedule 6.02 ; provided that (i) such Lien shall not apply to any property or asset of any Borrower or any Subsidiary other than the property or assets identified in Schedule 6.02 and the proceeds of such property or assets, and (ii) such Lien shall secure only those obligations which it secures on the date hereof and refinancings, extensions, renewals and replacements thereof that do not increase the outstanding principal
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amount thereof by an amount greater than an amount equal to the accrued and unpaid interest and any premium thereon paid in connection with such refinancing, extension, renewal or replacement and other reasonable amounts, paid and fees and expenses reasonably incurred, in connection with such refinancing, extension, renewal or replacement;
(c) any Lien existing on any property or asset prior to the acquisition thereof by any Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof 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 acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of any Borrower or any Subsidiary (other than proceeds of such property or asset) and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and refinancings, extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof by an amount greater than an amount equal to the accrued and unpaid interest and any premium thereon paid in connection with such refinancing, extension, renewal or replacement and other reasonable amounts, paid and fees and expenses reasonably incurred, in connection with such refinancing, extension, renewal or replacement;
(d) Liens on fixed or capital assets acquired, constructed or improved by any Borrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 6.01(e) , (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of any Borrower or any Subsidiary (other than proceeds of the applicable fixed or capital assets);
(e) Liens on cash or deposits granted in favor of the issuing bank of a letter of credit issued pursuant to Section 6.01(g) ;
(f) Liens on earnest money deposits made in connection with any Permitted Acquisition;
(g) rights of setoff or bankers liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of deposit accounts or securities accounts in the ordinary course of business;
(h) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto in the ordinary course of business;
(i) Liens securing Indebtedness permitted by Section 6.01(p) ; and
(j) other Liens securing Indebtedness or other obligations in an aggregate amount not exceeding $25,000,000 at any time outstanding.
Notwithstanding the foregoing, no Subsidiary that is a Massachusetts Securities Corporation shall create, incur, assume or permit to exist any Lien on any property or asset now owned or
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hereafter acquired by it, except for any Liens permitted under clause (a) of the definition of Permitted Encumbrances and clause (g) of this Section 6.02 , or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof.
SECTION 6.03 Fundamental Changes, and Conduct of Business .
(a) No Borrower will, nor will it permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any Substantial Part of its assets, or all or substantially all of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge into, consolidate with, liquidate into or dissolve and transfer its assets into, any Borrower in a transaction in which such Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into, consolidate with, liquidate into or dissolve and transfer its assets into, any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into, consolidate with, liquidate into or dissolve and transfer its assets into, any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into, consolidate with, liquidate into or dissolve and transfer its assets into, any other Subsidiary that is not a Subsidiary Guarantor, (v) any Loan Party may sell, transfer, lease or otherwise dispose of its assets (including the Equity Interests of its Subsidiaries) to any Loan Party, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets (including Equity Interests of its Subsidiaries) to any Borrower or to another Subsidiary, (vii) any Loan Party may sell, transfer, lease or otherwise dispose of its assets (including the Equity Interests of its Subsidiaries) to any Subsidiary that is not a Loan Party; provided that such transfer would be permitted as an investment pursuant to Section 6.04 ; (viii) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge into or consolidate with any Borrower in connection with an Acquisition (to the extent otherwise permitted by this Agreement) where such Borrower is the surviving entity, (ix) any Person may merge into or consolidate with any Subsidiary in connection with an Acquisition (to the extent otherwise permitted by this Agreement); provided that in connection with any such transaction, the applicable Borrower complies with Section 5.10 , to the extent it is applicable; and (x) any sale, transfer, lease or other disposition of all or any portion of the property set forth on Schedule 6.03 .
For the purposes of this Section 6.03(a) , Substantial Part means any assets with an aggregate book value equal to or greater than 20% of the remainder of (a) the book value of all assets of LMI and its Subsidiaries, as determined on a consolidated basis in accordance with GAAP, minus (b) the book value of all goodwill and other intangible assets of LMI and its Subsidiaries, as determined on a consolidated basis in accordance with GAAP, as set forth on LMIs most recently delivered Financial Statements.
(b) No Borrower will, nor will it permit any Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by LMI and its Subsidiaries on the date of execution of this Agreement and reasonable extensions thereof.
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(c) No Subsidiary that is a Massachusetts Securities Corporation shall engage in any business activity other than buying, selling, dealing in or holding securities on its own behalf, within the meaning of Massachusetts General Law c. 63, § 38B, and the applicable rules, regulations and directives of the Massachusetts Department of Revenue.
(d) No Borrower will, nor will it permit any Subsidiary to, change its fiscal year or any fiscal quarter other than to make it consistent with the fiscal year and fiscal quarters of LMI.
SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions . No Borrower will, nor will it permit any Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any Equity Interest, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person (each, an Investment ), or consummate an Acquisition (in one transaction or a series of related transactions), except:
(a) Permitted Investments;
(b) (i) Investments by LMI or any Subsidiary existing on the date hereof in the Equity Interests of its Subsidiaries and (ii) Investments existing on the date hereof and set forth in Schedule 6.04 ;
(c) Investments made by (i) any Loan Party to any other Loan Party; (ii) any Non-Loan Party Subsidiary (other than any Subsidiary that is a Massachusetts Securities Corporation) in any other Non-Loan Party Subsidiary; or (iii) any Loan Party in a Non-Loan Party Subsidiary (other than any Subsidiary that is a Massachusetts Securities Corporation); provided that the aggregate outstanding amount of all investments under this clause (iii) shall not exceed $50,000,000; provided , however , that the limit on Investments under this clause (iii) will not apply to any such Investment made in connection with the organizational restructuring of LMI and its Subsidiaries after the Merger to the extent such Investment is (a) consummated no later than 90 days after the Effective Date and (b) in or to a Non-Loan Party Subsidiary which becomes a Loan Party on or prior to the 90 th day after the Effective Date (or such longer time as the Administrative Agent may agree);
(d) Guarantees constituting Indebtedness permitted by Section 6.01 ;
(e) Permitted Acquisitions and Investments in Subsidiaries to the extent the proceeds of such Investments are applied to Permitted Acquisitions or to Capital Expenditures;
(f) Investments acquired in connection with the settlement of delinquent accounts receivable in the ordinary course of business or in connection with the bankruptcy or reorganization of suppliers or customers;
(g) accounts receivable owing to LMI or any Subsidiary, if created or acquired in the ordinary course of business;
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(h) Investments in the form of Swap Agreements permitted pursuant to Section 6.05 ;
(i) prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits and advance payments (including retainers) for goods or services paid or provided, in each case in the ordinary course of business;
(j) Investments held by a Person that becomes a Subsidiary (or is merged or consolidated with or into a Borrower or a Subsidiary) after the Effective Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation;
(k) Investments by any Loan Party in any and all Massachusetts Securities Corporations collectively shall not exceed, in aggregate at any time, $100,000,000; and
(l) other Investments by LMI and its Subsidiaries in an amount not to exceed at any time outstanding $20,000,000.
SECTION 6.05 Swap Agreements . No Borrower will, nor will it permit any Subsidiary to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which LMI or any Subsidiary has actual exposure (other than those in respect of Equity Interests of LMI or any Subsidiary), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of LMI or any Subsidiary.
SECTION 6.06 Restricted Payments . No Borrower will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (a) any Borrower and any Subsidiary may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common Equity Interests; (b) Subsidiaries may make Restricted Payments with respect to their Equity Interests; (c) any Borrower or any Subsidiary may make Restricted Payments pursuant to and in accordance with equity compensation plans or other benefit plans for management, directors, consultants or employees of LMI and the Subsidiaries; (d) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of LMI; (e) repurchases of Equity Interests in LMI, or any of the Subsidiaries, deemed to occur upon cashless exercise of options or warrants or upon delivery of Equity Interests pursuant to any equity compensation plan in lieu of payment of withholding taxes; (f) to the extent constituting Restricted Payments, transactions expressly permitted by Section 6.03 , Section 6.04 and Section 6.07(a) (other than Section 6.07(a)(iii) and Section 6.07(a)(vi) ); (g) LMI may make Restricted Payments if, (i) LMI shall be in compliance on a Pro Forma Basis with the Consolidated Total Leverage Ratio financial covenant set forth in Section 6.10(b) , (ii) the aggregate consideration paid in connection with such Restricted Payment or Restricted Payments shall not exceed $80,000,000 in the aggregate during the term of this Agreement for all such Restricted Payments; provided , however , that the limit on aggregate consideration set forth in preceding clause (g)(ii) will not apply to any Restricted Payment made
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during a period when the Consolidated Total Leverage Ratio on a Pro Forma Basis (both before and immediately after giving effect to such Restricted Payment) does not exceed 3.50 to 1.00, and any Restricted Payment made during such period shall not be counted against such limit, and (iii) both before and immediately after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing; and (h) each of the Citrix LLCs may redeem and cancel the Class A units in such Citrix LLC, in each case, in accordance with the applicable Citrix LLC Operating Agreement, as in effect on the date hereof.
SECTION 6.07 Transactions with Affiliates; Sale and Leaseback Transactions .
(a) No Borrower will, nor will it permit any Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) at prices and on terms and conditions not less favorable to such Borrower or such Subsidiary than could be obtained on an arms-length basis from unrelated third parties, (ii) transactions between or among LMI and its Subsidiaries not involving any other Affiliate, (iii) any Restricted Payment permitted by Section 6.06 , (iv) entering into employment and severance arrangements between LMI or any Subsidiary and any of their respective officers and employees, as determined in good faith by the board of directors or senior management of the relevant Person, (v) the payment of customary fees and reimbursement of reasonable out-of-pocket costs of, and customary indemnities provided to or on behalf of, directors, officers, management, consultants and employees of LMI and its Subsidiaries in the ordinary course of business and (vi) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of equity compensation plans or other benefit plans for management, directors, consultants or employees of LMI and the Subsidiaries.
(b) No Borrower will, nor will it permit any Subsidiary to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred (a Sale and Leaseback Transaction ), except for (i) any such sale or transfer of any fixed or capital assets by any Borrower or any Subsidiary that is made for cash consideration in an amount not less than the fair value of such fixed or capital asset and is consummated within 90 days after such Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset or (ii) any such sale or transfer of all or any portion of the property set forth on Schedule 6.03 .
SECTION 6.08 Restrictive Agreements . No Borrower will, nor will it permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of any Borrower 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 Equity Interests or to make or repay loans or advances to any Borrower or any other Subsidiary or to Guarantee Indebtedness of any Borrower or any other Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by the Loan Documents, (ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof identified on Schedule 6.08 (but shall
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apply to any extension or renewal of, or any amendment or modification, in each case, that expands 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 the sale of assets of LMI or any Subsidiary pending such sale, provided that such restrictions and conditions apply only to the Subsidiary that is, or the assets that are, to be sold and such sale is permitted hereunder or such sale is conditioned on either a consent under this Agreement or the payment of the Loans and termination of this Agreement, (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) clause (a) of the foregoing shall not apply to customary provisions in leases or licenses restricting the assignment thereof, (vi) customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (vii) clause (b) of the foregoing shall not apply to any restrictions or conditions imposed by any agreement relating to Indebtedness permitted pursuant to Section 6.01 entered into after the Effective Date if such restrictions are not materially more restrictive, taken as a whole, in the good faith judgment of LMI, than (A) the restrictions contained in the Loan Documents or (B) in the case of Indebtedness incurred in connection with a refinancing, extension, renewal or replacement of Indebtedness, the restrictions that are in effect on the Effective Date pursuant to the Indebtedness to be refinanced, extended, renewed or replaced, and (viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business and related to such joint ventures.
SECTION 6.09 Prepayments, Etc., of Permitted Unsecured Debt . LMI shall not prepay, repay, redeem, purchase, defease, or otherwise satisfy or obligate itself to do so prior to the schedule maturity thereof in any manner (including by the exercise of any right of setoff), or make any payment in violation of any subordination, standstill or collateral sharing terms of or governing any Permitted Unsecured Debt, except (a) regularly scheduled or required repayments and refinancings and refundings of such Permitted Unsecured Debt, (b) a Permitted Unsecured Debt Repayment and Repurchase and (c) prepayments, repayments, redemptions, purchases, defeasances, or otherwise satisfactions of Subordinated Indebtedness permitted pursuant to and in accordance with subordination or intercreditor agreements entered into with respect to such Subordinated Indebtedness.
SECTION 6.10 Financial Covenants .
(a) Consolidated Senior Secured Leverage Ratio . LMI will not permit the Consolidated Senior Secured Leverage Ratio, as of the last day of any Reference Period, to be greater than 3.00 to 1.00.
(b) Consolidated Total Leverage Ratio . LMI will not permit the Consolidated Total Leverage Ratio, as of the last day of any Reference Period, to be greater than 4.00 to 1.00.
(c) Consolidated Fixed Charge Coverage Ratio . LMI will not permit the Consolidated Fixed Charge Coverage Ratio, as of the last day of any Reference Period, to be less than 3.00 to 1.00.
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ARTICLE VII.
Events of Default
If any of the following events ( Events of Default ) shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of any Borrower or any Subsidiary in or in connection with this Agreement, any other Loan Document, or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or in any respect if already qualified by concepts of materiality) when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02 , 5.03 (with respect to each Borrowers existence), 5.08 , 5.09(c) or in Article VI;
(e) any Borrower shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrowers (which notice will be given at the request of the Administrative Agent or the Required Lenders);
(f) any Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time, or both, but after giving effect to all applicable grace periods) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization, examinership or other relief in respect of
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any Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner or similar official for any Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) any Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, examiner or similar official for any Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) any Borrower or any Material Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments, orders or awards for the payment of money in an aggregate amount in excess of $15,000,000 (except to the extent covered by insurance provided by a financially sound and reputable insurer pursuant to which such insurer has not denied coverage) shall be rendered against any Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged, unsatisfied or unvacated for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder, shall cease to be in full force and effect; or any Loan Party shall contest in any manner the validity or enforceability of any Loan Document; or any Loan Party shall deny that it has any or further liability or obligation under any Loan Document, or shall purport to revoke, terminate or rescind any Loan Document; or
(o) except as permitted pursuant to Section 9.19, any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest (subject only to liens permitted by the Loan Documents) in any material portion of the Collateral as required by this Agreement or any Collateral Document, except as permitted by the terms of any Loan
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Document or except to the extent that any such loss of validity, perfection or priority results from any action or inaction on the party of the Administrative Agent or any other Secured Party (including, without limitation, a failure to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or from the failure of the Administrative Agent to file UCC continuation statements);
then, and in every such event (other than an event with respect to any Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times: (i) terminate the Revolving Commitments, and thereupon the Revolving Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower; and in case of any event with respect to any Borrower described in clause (h) or (i) of this Article, the Revolving Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.
ARTICLE VIII.
The Administrative Agent
Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent 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, together with such actions and powers as are reasonably incidental thereto.
The bank 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 such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
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directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 ), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to LMI or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 ) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by LMI or a Lender, and 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 in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the 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.
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 believed by it to be genuine and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), 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.
The Administrative Agent may perform any and all its duties and exercise its rights and powers 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 its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs 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.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and LMI. Upon any such resignation, the Required Lenders shall have the right, with the consent of LMI (such consent not to be unreasonably withheld, delayed or conditioned), to appoint a successor. If no successor shall have been so appointed by the Required Lenders, consented to by LMI and shall have accepted such appointment within 30
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days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by LMI to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between LMI and such successor. After the Administrative Agents resignation hereunder, the provisions of this Article and Section 9.03 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 while it was acting as Administrative Agent.
Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent, any arranger of the credit facilities hereunder or any amendment thereto or any other Lender and their respective 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 as a Lender, and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent, any arranger of the credit facilities hereunder or any amendment thereto or any other Lender and their respective Related Parties and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrowers and their Affiliates) 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 related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder.
Anything herein to the contrary notwithstanding, no Arranger, Syndication Agent or Documentation Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Credit Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank hereunder.
In its capacity, the Administrative Agent is a representative of the Secured Parties within the meaning of the term secured party as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute
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and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral in accordance with Section 9.02(d) . Upon any sale or transfer of assets constituting Collateral that is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days (or such shorter period as the Administrative Agent shall agree) prior written request by LMI to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided , that (a) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agents opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (b) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of any Borrower or any Subsidiary in respect of) all interests retained by any Borrower or any Subsidiary, including the proceeds of the sale, all of which shall continue to constitute part of the Collateral.
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 by 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, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Credit Party is subject, or (b) at any other sale, 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 entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders 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 shall 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) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative 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,
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and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) 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 Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
ARTICLE IX.
Miscellaneous
SECTION 9.01 Notices . (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (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 telecopy, as follows:
(i) if to any Borrower, to LMI at LogMeIn, Inc., 320 Summer St., Boston, MA 02210, Attention: Chief Financial Officer (Telecopy No. (781) 437-1820), with a copy to LogMeIn, Inc., 320 Summer St., Boston, MA 02210, Attention: General Counsel (Telecopy No. (781) 437-1820) and a copy to Latham & Watkins LLP, John Hancock Tower, 27th Floor, 200 Clarendon Street, Boston, MA 02116, Attention: John H. Chory, Esq. (Telecopy No. (781) 434-6601);
(ii) if to the Administrative Agent, (A) in the case of Borrowings denominated in U.S. Dollars, to JPMorgan Chase Bank, N.A., Loan and Agency Services Corporate Client Banking, 10 South Dearborn, Floor 7, Chicago, Illinois 60601, Attention of Joyce King (Telecopy No. (888) 292-9533; E-mail JPM.Agency.Servicing.4@ jpmorgan.com) and (B) in the
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case of Borrowings denominated in Foreign Currencies, to J.P. Morgan Europe Limited, 25 Bank Street, Canary Wharf, London E14 5JP, United Kingdom, Attention of The Manager (Telecopy No. 44 207 777 2360; E-mail loan_and_agency_london@jpmorgan.com), and in each case with a copy (which shall not constitute notice) to JPMorgan Chase Bank, N.A., Corporate Client Banking, 270 Park Avenue, 43rd Floor, New York, New York 10017, Attention of Justin Burton (Telecopy No. (917) 546-2609; E-mail justin.x.burton@jpmorgan.com;
(iii) if to JPMorgan Chase Bank, N.A., as an Issuing Bank, to it at JPMorgan Chase Bank, N.A., L/C Loan and Agency Services Corporate Client Banking, 10 South Dearborn, Floor 7, Chicago, Illinois 60601, Attention of Manager (Telecopy No. (844) 492-3899 E-mail CHICAGO.LC.AGENCY.ACTIVITY.TEAM@JPMCHASE.COM with a copy (which shall not constitute notice) to JPMorgan Chase Bank, N.A., Corporate Client Banking, 270 Park Avenue, 43rd Floor, New York, New York 10017, Attention of Justin Burton (Telecopy No. (917) 546-2609; E-mail justin.x.burton@jpmorgan.com ); and
(iv) if to any other Lender or Issuing Bank, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through Electronic Systems, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
(b) Notices and other communications to the Lenders and the Issuing Banks hereunder may be delivered or furnished by using Electronic Systems pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or LMI, on behalf of the Borrowers, may each agree, in their discretion, 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 senders receipt of an acknowledgement from the intended recipient (such as by the return receipt requested function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
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(c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
(d) Electronic Systems.
(i) Each Borrower agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to the Issuing Banks and the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System.
(ii) Any Electronic System used by the Administrative Agent is provided as is and as available. The Agent Parties (as defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications. 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 Communications or any Electronic System. In no event shall the Administrative Agent or any of its Related Parties (collectively, the Agent Parties ) have any liability to any Borrower or any other Loan Parties, any Lender, any Issuing Bank or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrowers, any Loan Partys or the Administrative Agents transmission of communications through an Electronic System, other than any damages to the extent they are found by a final, non-appealable judgment of a court of competent jurisdiction to arise or result from the bad faith, willful misconduct or gross negligence of such Agent Party. Communications means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through an Electronic System.
SECTION 9.02 Waivers; Amendments . (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders under the Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
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waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by each Borrower and the Required Lenders or by each Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement (including any Incremental Term Loan Amendment) shall (i) increase the Revolving Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest (other than default interest) thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest (other than default interest) thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Commitment, without the written consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each adversely affected Lender, (v) release LMI from its Obligations without the written consent of each Lender, (vi) change any of the provisions of this Section or the definition of Required Lenders or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each adversely affected Lender (it being understood that, solely with the consent of the parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Revolving Commitments and the Revolving Loans are included on the Effective Date) (provided that with the consent of the Administrative Agent, the provisions of this Section 9.02(b) and the definition of the term Required Lenders may be amended to include references to any new class of loans created under this Agreement (or to lenders extending such loans hereunder) on substantially the same basis as the corresponding references relating to the existing classes of Loans or Lenders), (vii) change the definition of Agreed Currency without the written consent of each adversely affected Lender, (viii) release all or substantially all of the Loan Parties other than LMI from their obligations under the Loan Documents without the written consent of each adversely affected Lender, or (ix) except as provided in paragraph (d) of this Section, release all or substantially all of the Collateral without the written consent of each adversely affected Lender; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank hereunder without the prior written consent of the Administrative Agent or such Issuing Bank, as the case may be.
(c) Notwithstanding anything to the contrary herein, (i) the Administrative Agent may, with the consent of the Borrowers only, amend, modify or supplement any Loan Document to cure any ambiguity, omission, mistake, typographical error, defect or inconsistency, and (ii) the Administrative Agent may, in its sole discretion, waive any of the conditions set forth
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in Section 4.01 with respect to immaterial matters or items noted in any post-closing letter made available to the Lenders with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Effective Date.
(d) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, and with respect to clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) below, the Administrative Agent for the benefit of the Borrowers hereby agrees to release any Liens granted to or held by the Administrative Agent upon any Collateral (i) upon the termination of all the Revolving Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than (A) contingent obligations and (B) Secured Swap Obligations and Secured Banking Services Obligations as to which arrangements reasonably satisfactory to the applicable Swap Provider or Banking Services Provider have been made), and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank have been made, including the posting of cash collateral in the amount required pursuant to Section 2.06(j)), (ii) constituting property being sold or disposed of if LMI certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property leased to any Borrower or any Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII , (v) as otherwise permitted by, but only in accordance with, the terms of any Loan Document, (vi) release any Borrower which is removed as a Borrower pursuant to Section 5.09(b) (and all Liens on assets of such Borrower), in each case unless such Borrower is required to become a Guarantor pursuant to Section 5.10 ; (vii) release all Foreign Subsidiaries that are Guarantors (and all Liens on assets of such Foreign Subsidiaries) if all Foreign Borrowers are removed pursuant to Section 5.09(b) , or (viii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agents authority to release particular types or items of Collateral pursuant hereto. Any such release shall not in any manner discharge, affect, or impair the Secured Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
SECTION 9.03 Expenses; Indemnity; Damage Waiver . (a) LMI shall pay (i) all reasonable and documented out of pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable and documented fees, charges and disbursements of a single counsel and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for the Administrative Agent and its Affiliates, in connection with the syndication of the credit facilities provided for herein, the preparation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any Issuing Bank in connection with the
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issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, and the other Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred in regard to any workout, restructuring or negotiations in respect of such Loans or Letters of Credit; provided that LMI shall only be required to pay the reasonable and documented out-of-pocket legal expenses of a single counsel for the Administrative Agent, the Issuing Banks and the Lenders and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all such persons (and, in the case of a conflict of interest where the person or persons affected by such conflict informs LMI of such conflict, one additional single counsel for all similarly situated persons).
(b) LMI shall indemnify the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an Indemnitee ) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, limited, in the case of the Indemnitees legal fees, to the reasonable and documented fees, charges and disbursements of any one counsel for all the Indemnitees and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all the Indemnitees (and in the case of a conflict of interest where Indemnitees affected by such conflict inform LMI of such conflict, of one additional counsel for all similarly affected Indemnitees) for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank 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 or not such claim, litigation, investigation or proceeding is brought by any Borrower or any other Loan Party or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory 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 are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.
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(c) To the extent that LMI fails to pay any amount required to be paid by it to the Administrative Agent or any Issuing Bank under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent or such Issuing Bank, as the case may be, such Lenders 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 such Issuing Bank in their capacity as such.
(d) To the extent permitted by applicable law, no party hereto shall assert, and each such party hereby waives, any claim against any other party hereto, 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 or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this clause (d) shall relieve LMI of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
(e) All amounts due under this Section shall be payable not later than ten (10) Business Days after written demand therefor.
SECTION 9.04 Successors and Assigns . (a) 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 (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section (and any other attempted assignment or transfer by any Lender 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 (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving Commitment, participations in Letters of Credit and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) LMI, provided that LMI shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided , further , that no consent of LMI shall be
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required for an assignment to a Lender (other than a Defaulting Lender), an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of (x) any Revolving Commitment to an assignee that is a Lender (other than a Defaulting Lender) with a Revolving Commitment immediately prior to giving effect to such assignment, an Affiliate of a Lender or an Approved Fund, other than an assignment that would result in such Lender and its Affiliates holding more than 50% of the Revolving Commitments, and/or (y) all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) each Issuing Bank; provided that no consent of any Issuing Bank shall be required for an assignment of (x) any Revolving Commitment to an assignee that is a Lender (other than a Defaulting Lender), an Affiliate of a Lender or an Approved Fund or (y) all or any portion of a Term Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lenders Revolving Commitment or Loans of any Class, the amount of the Revolving Commitment or 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) shall not be less than the Dollar Amount of $5,000,000 (or $1,000,000 in the case of any assignment of Term Loans) unless each of LMI and the Administrative Agent otherwise consent, provided that no such consent of LMI shall be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lenders rights and obligations in respect of one Class of Revolving Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants), together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers, the Loan Parties and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignees compliance procedures and applicable laws, including Federal and state securities laws.
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For the purposes of this Section 9.04(b) , the term Approved Fund and Ineligible Institution have the following meanings:
Approved Fund means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Ineligible Institution means (a) a Defaulting Lender or its Lender Parent, (b) each Borrower, its Subsidiaries or any of its other Affiliates, or (c) a natural person or any company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or a relative thereof.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto 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 Lenders 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 2.15 , 2.16 , 2.17 and 9.03 ). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 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, and must be in accordance with the terms of, paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of each Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Revolving Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements
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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, the Issuing Banks 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. The Register shall be available for inspection by any Borrower, any Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants), the assignees completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.06(d) or (e) , 2.07(b) , 2.18(d) or 9.03(c) , the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of any Borrower, the Administrative Agent or the Issuing Banks, sell participations to one or more banks or other entities (a Participant ), other than an Ineligible Institution, in all or a portion of such Lenders rights and obligations under this Agreement (including all or a portion of its Revolving Commitment and the Loans owing to it); provided that (A) such Lenders obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrowers, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15 , 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Sections 2.17(f) and (g) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender and the information and documentation required under 2.17(g) will be delivered to LMI and the Administrative Agent)) to
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the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.17 , with respect to any participation, than its participating Lender would have been entitled to receive, had no participation been granted to such Participant Each Lender that sells a participation agrees to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.18(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants 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 Participants interest in any Revolving 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 Revolving 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.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05 Survival . All covenants, agreements, representations and warranties made by any Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement and the other Loan Documents shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Revolving Commitments have not expired or terminated. The provisions of Sections 2.15 , 2.16 , 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Revolving Commitments or the termination of this Agreement or any provision hereof.
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SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic Execution .
(a) This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent 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 which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(b) Delivery of an executed counterpart of a signature page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words execution, signed, signature, delivery, and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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.
SECTION 9.07 Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08 Right of Setoff . Subject to the provisions of Section 9.18 hereof, if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of any Borrower against any of and all the obligations of any Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. Subject to the provisions of Section 9.18 hereof, the rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
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SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process . (a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan, and of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action 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 shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against any Borrower or its properties in the courts of any jurisdiction.
(c) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01 . Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY 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 THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
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SECTION 9.12 Confidentiality . Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates directors, officers, employees and agents, including accountants, legal counsel and other advisors (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 and will either have a legal obligation to keep such Information confidential or will enter into an agreement for the benefit of LMI to keep such Information confidential), (b) to the extent requested by any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners) having jurisdiction over the Administrative Agent, the applicable Issuing Bank or the applicable Lender, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Borrower and its obligations, (g) with the prior written consent of LMI or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender on a non-confidential basis from a source other than the Borrowers or any source that the Administrative Agent, the applicable Issuing Bank or the applicable Lender knows is subject to a confidentiality agreement. For the purposes of this Section, Information means all information received from any Borrower or any Subsidiary relating to the Borrowers, the Subsidiaries or their business, other than any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a non-confidential basis prior to disclosure by any Borrower or any Subsidiary and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
SECTION 9.13 Material Non-Public Information .
(a) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWERS, THE SUBSIDIARIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
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(b) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWERS OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWERS, THE SUBSIDIARIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW .
SECTION 9.14 Authorization to Distribute Certain Materials to Public-Siders .
(a) If the Borrowers do not file this Agreement with the SEC, then the Borrowers hereby authorize the Administrative Agent to distribute the execution version of this Agreement and the other Loan Documents that are filed with the SEC to all Lenders, including their Public-Siders. Each Borrower acknowledges its understanding that Public-Siders and their firms may be trading in any of the Parties respective securities while in possession of such Loan Documents.
(b) Each Borrower represents and warrants that none of the information in this Agreement and the other Loan Documents that are filed with the SEC constitutes or contains material non-public information within the meaning of the federal and state securities laws. To the extent that any such executed Loan Documents constitutes at any time a material non-public information within the meaning of the federal and state securities laws after the date hereof, the Borrowers agree that they will promptly make such information publicly available by press release or public filing with the SEC.
SECTION 9.15 Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the Charges ), shall exceed the maximum lawful rate (the Maximum Rate ) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.16 USA PATRIOT Act . Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Act ) hereby notifies the Borrowers that pursuant to the requirements of the Act, it is required to
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obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender to identify each Borrower in accordance with the Act.
SECTION 9.17 Appointment for Perfection . Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or control of any such Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agents request therefor shall deliver such Collateral to the Administrative Agent (if applicable) or otherwise deal with such Collateral in accordance with the Administrative Agents instructions.
SECTION 9.18 Liability for Obligations . Notwithstanding anything to the contrary contained in this Agreement or in the other Loan Documents to the contrary, the parties agree that: (a) neither LMI Ireland nor any other Foreign Subsidiary shall be liable for any obligation of LMI or any Domestic Subsidiary arising under or with respect to any of the Loan Documents (including for any damages for breach of covenants by LMI or any Domestic Subsidiary), (b) each Domestic Borrower shall be liable for all of the obligations of each Loan Party arising under or with respect to any of the Loan Documents (including for any damages for breach of covenants by LMI or any Domestic Subsidiary) and (c) neither the Administrative Agent nor any Lender, nor any Affiliate thereof, may set-off or apply any deposits of a Foreign Subsidiary or any other obligations at the time owing to or for the credit of the account of any Foreign Subsidiary by such Administrative Agent, Lender of Affiliate thereof, against any or all of the obligations of LMI.
SECTION 9.19 Non-U.S Collateral Documents . Notwithstanding any provision of this Agreement to the contrary, each of the parties to this Agreement agrees that no U.S. Loan Party shall be required to execute any Collateral Document governed by the law of any jurisdiction outside the United States, and that each representation and warranty under this Agreement and each covenant in this Agreement shall be deemed not to require any such non-U.S. Collateral Document from any U.S. Loan Party.
SECTION 9.20 No Fiduciary Duty, etc . The Borrowers acknowledge and agree, and acknowledge its subsidiaries understanding, that no Credit Party will have any obligations except those obligations expressly set forth herein and in the other Loan Documents and each Credit Party is acting solely in the capacity of an arms length contractual counterparty to the Borrowers with respect to the Loan Documents and the transaction contemplated therein and not as a financial advisor or a fiduciary to, or an agent of, the Borrowers or any other person. The Borrowers agree that it will not assert any claim against any Credit Party based on an alleged breach of fiduciary duty by such Credit Party in connection with this Agreement and the transactions contemplated hereby. Additionally, the Borrowers acknowledge and agree that no Credit Party is advising the Borrowers as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction. The Borrowers shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Credit Parties shall have no responsibility or liability to the Borrowers with respect thereto.
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The Borrowers further acknowledge and agree, and acknowledge its subsidiaries understanding, that each Credit Party is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, any Credit Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you and other companies with which you may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Credit Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.
In addition, the Borrowers acknowledge and agree, and acknowledge its subsidiaries understanding, that each Credit Party and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein and otherwise. No Credit Party will use confidential information obtained from you by virtue of the transactions contemplated by the Loan Documents or its other relationships with you in connection with the performance by such Credit Party of services for other companies, and no Credit Party will furnish any such information to other companies. You also acknowledge that no Credit Party has any obligation to use in connection with the transactions contemplated by the Loan Documents, or to furnish to you, confidential information obtained from other companies.
SECTION 9.21 Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document 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 party hereto 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 entity, 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.
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SECTION 9.22 Existing Credit Agreement Amended and Restated . On the Effective Date, (a) this Agreement shall amend and restate the Existing Credit Agreement in its entirety but, for the avoidance of doubt, shall not in any respect constitute a novation of the parties rights and obligations thereunder, (b) the Commitments thereunder (and as defined therein) shall automatically continue as Revolving Commitments herein, (c) the rights and obligations of the parties hereto evidenced by the Existing Credit Agreement shall be evidenced by this Agreement and the other Loan Documents, (d) the Revolving Loans under (and as defined in) the Existing Credit Agreement shall remain outstanding and be continued as, and converted to, Revolving Loans hereunder (and, in the case of Eurocurrency Loans, with the same Interest Periods or the remaining portions of such Interest Periods, as applicable, established therefor under the Existing Credit Agreement), and shall bear interest and be subject to such other fees as set forth in this Agreement, and (e) the security interests granted under the Collateral Documents shall continue to secure the Secured Obligations. In connection with the foregoing, (x) all such Loans and all participations in Letters of Credit and LC Exposure that are continued hereunder shall immediately upon the effectiveness of this Agreement, to the extent necessary to ensure the Lenders hold such Loans and participations ratably, be reallocated among the Lenders in accordance with their respective Applicable Percentages, as evidenced on Schedule 2.01 , (y) each applicable Lender to whom Loans are so reallocated shall make full cash settlement (if applicable) on the Effective Date, through the Administrative Agent, as the Administrative Agent may direct with respect to such reallocation, in the aggregate amount of the Loans so reallocated to each such Lender, and (z) each applicable Lender hereby waives any breakage fees in respect of such reallocation of Eurocurrency Loans on the Effective Date. All interest and fees and expenses, if any, owing or accruing under or in respect of the Existing Credit Agreement to the Effective Date shall be calculated as of the Effective Date (pro-rated in the case of any fractional periods), and shall be paid on the Effective Date.
ARTICLE X.
BORROWER GUARANTEES
SECTION 10.01 Guarantee of Domestic Borrowers . In order to induce the Lenders to extend credit to the other Borrowers hereunder, each Domestic Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Secured Obligations of such other Borrowers and of any Subsidiaries. Each Domestic Borrower further agrees that, except for any consent of such Domestic Borrower which is expressly required pursuant to this Agreement, the due and punctual payment of such Secured Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Secured Obligations.
Each Domestic Borrower waives presentment to, demand of payment from and protest to any Borrower or any Subsidiary of any of the Secured Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Domestic Borrowers hereunder shall not be affected by (a) the failure of the Administrative
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Agent or any Lender to assert any claim or demand or to enforce any right or remedy against any Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (b) any extension or renewal of any of the Secured Obligations, (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement, (d) any default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations or (e) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of any Domestic Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of any Domestic Borrower to subrogation; provided that the provisions of this paragraph shall not be deemed to be a waiver by any Domestic Borrower of any rights which it has under this Agreement or any other Loan Document related to amendments or waivers of the Loan Documents.
Each Domestic Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Secured Obligations is rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the bankruptcy or reorganization of any Borrower or Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against any Domestic Borrower by virtue hereof, upon the failure of any other Borrower or any Subsidiary (as applicable) to pay any Secured Obligations when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Domestic Borrower hereby promises to and will, upon receipt of written demand by the Administrative Agent or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent or such Lender in cash an amount equal to the unpaid principal amount of such Secured Obligations then due, together with accrued and unpaid interest thereon. Each Domestic Borrower further agrees that if payment in respect of any Secured Obligations shall be due in a currency other than U.S. Dollars and/or at a place of payment other than New York and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Secured Obligations in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent or any Lender, not consistent with the protection of its rights or interests, then, at the election of the Administrative Agent, such Domestic Borrower shall make payment of such Secured Obligations in U.S. Dollars (based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York, and shall indemnify the Administrative Agent and each Lender against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.
Upon payment by any Domestic Borrower of any sums as provided above, all rights of such Domestic Borrower against any Borrower or any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full of all the Secured Obligations owed by such Borrower to the Administrative Agent, the Issuing Banks and the Lenders.
Nothing shall discharge or satisfy the liability of any Domestic Borrower under this Section 10.01 except the full performance and payment of the Secured Obligations. Notwithstanding any provisions of this Section 10.01 , with respect to any Domestic Borrower,
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the guarantee obligation of such Domestic Borrower of and for Secured Obligations hereunder shall not include any Swap Obligations that constitute Excluded Swap Obligations with respect to such Domestic Borrower.
SECTION 10.02 Guarantee of Foreign Borrowers . In order to induce the Lenders to extend credit to the other Foreign Borrowers hereunder, each Foreign Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Secured Obligations of each other Foreign Borrower. Each Foreign Borrower further agrees that, except for any consent of such Foreign Borrower which is expressly required pursuant to this Agreement, the due and punctual payment of such Secured Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Secured Obligation.
Each Foreign Borrower waives presentment to, demand of payment from and protest to any other Borrower of any of the Secured Obligations of any Foreign Borrower, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Foreign Borrowers hereunder shall not be affected by (a) the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce any right or remedy against any Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (b) any extension or renewal of any of the Secured Obligations, (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement, (d) any default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations or (e) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of any Foreign Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of any Foreign Borrower to subrogation; provided that the provisions of this paragraph shall not be deemed to be a waiver by any Foreign Borrower of any rights which it has under this Agreement or any other Loan Document related to amendments or waivers of the Loan Documents.
Each Foreign Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Secured Obligations of any Foreign Borrower is rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the bankruptcy or reorganization of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against any Foreign Borrower by virtue hereof, upon the failure of any Foreign Borrower to pay any Secured Obligations of such Foreign Borrower when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Foreign Borrower hereby promises to and will, upon receipt of written demand by the Administrative Agent or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent or such Lender in cash an amount equal to the unpaid principal amount of any Secured Obligations of any other Foreign Borrowers then due, together with accrued and unpaid interest thereon. Each Foreign Borrower further agrees that if payment in respect of any Secured Obligations of any other Foreign Borrower shall be due
109
in a currency other than U.S. Dollars and/or at a place of payment other than New York and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Secured Obligations in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent or any Lender, not consistent with the protection of its rights or interests, then, at the election of the Administrative Agent, such Foreign Borrower shall make payment of such Secured Obligations in U.S. Dollars (based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York, and shall indemnify the Administrative Agent and each Lender against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.
Upon payment by any Foreign Borrower of any sums as provided above, all rights of such Foreign Borrower against any other Foreign Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full of all the Secured Obligations owed by such Foreign Borrower to the Administrative Agent, the Issuing Banks and the Lenders.
Nothing shall discharge or satisfy the liability of any Foreign Borrower under this Section 10.02 except the full performance and payment of the Secured Obligations of all Foreign Borrowers. Notwithstanding any provisions of this Section 10.02 , with respect to any Foreign Borrower, the guarantee obligation of such Foreign Borrower of and for Secured Obligations hereunder shall not include any Swap Obligations that constitute Excluded Swap Obligations with respect to such Foreign Borrower.
SECTION 10.03 Keepwell .
Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Article X in respect of Secured Swap Obligations; provided , that each Qualified ECP Guarantor shall only be liable under this Section 10.03 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.03 or otherwise under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount. The obligations and undertakings of each Qualified ECP Guarantor under this Section 10.03 shall remain in full force and effect until the Secured Swap Obligations have been Paid in Full. Each Qualified ECP Guarantor intends that this Section 10.03 constitute, and this Section 10.03 shall be deemed to constitute, a keepwell, support or other agreement for the benefit of each other Guarantor for all purposes of the Commodity Exchange Act.
SECTION 10.04 Limitation on Foreign Guarantees .
Notwithstanding any other provisions of the Loan Documents, no Loan to any Domestic Borrower or other obligation of any Domestic Borrower or any Domestic Subsidiary under this Agreement or under any Loan Document may be, directly or indirectly, (a) guaranteed by a Foreign Borrower or a Foreign Subsidiary, (b) secured by any assets of any Foreign Borrower or Foreign Subsidiary (including any stock held directly or indirectly by a Foreign Borrower or Foreign Subsidiary) or (c) secured by a pledge in excess of 65% of the stock (measured by the total combined voting power of the issued and outstanding voting stock) of a Foreign Borrower or Foreign Subsidiary.
110
[No further text on this page. Signature pages follow.]
111
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
LOGMEIN, INC. | ||||||
By: |
/s/ Edward K. Herdiech |
|||||
Name: | Edward K. Herdiech | |||||
Title: | Chief Financial Officer and Treasurer |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
JPMORGAN CHASE BANK, N.A., individually, as a Lender and as Administrative Agent, | ||||||
By: |
/s/ Justin Burton |
|||||
Name: | Justin Burton | |||||
Title: | Vice President |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
ROYAL BANK OF CANADA, as a Lender, | ||||||
By: |
/s/ Theodore Brown |
|||||
Name: | Theodore Brown | |||||
Title: | Authorized Signatory |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
WELLS FARGO BANK, N.A., as a Lender, | ||||||
By: |
/s/ Debra E. DelVecchio |
|||||
Name | Debra E. DelVecchio | |||||
Title: | Senior Vice President |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
SILICON VALLEY BANK, as a Lender, | ||||||
By: |
/s/ Kristy Vlahos |
|||||
Name | Kristy Vlahos | |||||
Title: | Director |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
BANK OF AMERICA, N.A., as a Lender, | ||||||
By: |
/s/ My-Linh Yoshiike |
|||||
Name | My-Linh Yoshiike | |||||
Title: | Vice President |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
SUNTRUST BANK, as a Lender, | ||||||
By: |
/s/ Jason Crowley |
|||||
Name | Jason Crowley | |||||
Title: | Vice President |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
TD BANK, N.A., as a Lender, | ||||||
By: |
/s/ William F. Granchelli |
|||||
Name | William F. Granchelli | |||||
Title: | Vice President |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
CITIZENS BANK, N.A., as a Lender, | ||||||
By: |
/s/ Brendan Roche |
|||||
Name | Brendan Roche | |||||
Title: | Senior Vice President |
[SIGNATURE PAGE TO CREDIT AGREEMENT (JPM-LMI 2017)]
Schedule 2.01
Revolving Commitments
Lender |
Commitment | Initial Applicable Percentage | ||||||
JPMorgan Chase Bank, N.A. |
$ | 60,000,000 | 15.000000000 | % | ||||
Wells Fargo Bank, N.A. |
$ | 60,000,000 | 15.000000000 | % | ||||
Royal Bank of Canada |
$ | 60,000,000 | 15.000000000 | % | ||||
Silicon Valley Bank |
$ | 45,000,000 | 11.250000000 | % | ||||
Bank of America, N.A. |
$ | 45,000,000 | 11.250000000 | % | ||||
Citizens Bank |
$ | 45,000,000 | 11.250000000 | % | ||||
SunTrust Bank |
$ | 45,000,000 | 11.250000000 | % | ||||
TD Bank, N.A. |
$ | 40,000,000 | 10.000000000 | % | ||||
|
|
|
|
|||||
Total: |
$ | 400,000,000 | 100.000000000 | % | ||||
|
|
|
|
Schedule 3.06
Disclosed Matters
None.
Schedule 3.13
Subsidiaries
Subsidiary |
Jurisdiction |
Owner(s) & Percentage |
||
LogMeIn Ireland Holding Company Limited | Ireland | LogMeIn, Inc. (100%) | ||
Nihon LogMeIn Kabushiki Kaisha | Japan | LogMeIn, Inc. (100%) | ||
3LI Securities Corporation | Massachusetts security corporation | LogMeIn, Inc. (100%) | ||
Zamurai Corporation | Delaware | LogMeIn, Inc. (100%) | ||
Remotely Anywhere, Inc. | Delaware | LogMeIn, Inc. (100%) | ||
Marvasol Inc. (d/b/a LastPass) | Delaware | LogMeIn, Inc. (100%) | ||
BBA, Inc. (d/b/a Meldium) | Delaware | LogMeIn, Inc. (100%) | ||
AuthAir, Inc. | Delaware | LogMeIn, Inc. (100%) | ||
LogMeIn Szoftverkeszito es Szaktanacsado Korlatolt Felelossegu Tarasag | Hungary | LogMeIn Ireland Holding Company Limited (100%) | ||
LogMeIn Ireland Limited | Ireland | LogMeIn Ireland Holding Company Limited (100%) | ||
LogMeIn UK Ltd. | United Kingdom | LogMeIn Ireland Limited (100%) | ||
LogMeIn Australia Pty Ltd. | Australia | LogMeIn Ireland Limited (100%) | ||
LogMeIn Europe B.V. | Netherlands | LogMeIn Ireland Limited (100%) | ||
Xively Ltd. | United Kingdom | LogMeIn UK Ltd. (100%) | ||
LogMeIn Consultoria e Servicos de Informatica Ltda. | Brazil |
LogMeIn Ireland Holding Company Limited (99%) LogMeIn Ireland Limited (1%) |
||
LogMeIn Brazil Ltd. | Brazil |
LogMeIn Ireland Limited (99%) LogMeIn Europe B.V. (1%) |
LogMeIn (India) Private Limited | India |
LogMeIn, Inc. (99%) LogMeIn Europe B.V. (1%) |
||
GetGo, Inc. | Delaware | LogMeIn, Inc. (100%) | ||
GetGo Investment LLC | Delaware | GetGo, Inc. (100%) | ||
GetGo Audio LLC | Delaware | GetGo, Inc. (100%) | ||
Grasshopper Group, LLC | Massachusetts |
Citrix Systems, Inc. (100% of voting control) GetGo, Inc. (100% of economic interests) |
||
GetGo Communications LLC | Delaware |
Citrix Systems, Inc. (100% of voting control) GetGo, Inc. (100% of economic interests) |
||
GetGo Communications Virginia LLC | Virginia | GetGo Communications LLC (100%) | ||
GetGo Holdings Bermuda Limited | Bermuda | GetGo Investment LLC (100%) | ||
Carbon Software Technologies Holdings Limited | Ireland | GetGo Holdings Bermuda Limited (100%) | ||
GetGo Software Technologies India Private Limited | India | Carbon Software Technologies Holdings Limited (100%) | ||
GetGo Technologies UK Limited | United Kingdom | Carbon Software Technologies Holdings Limited (100%) | ||
GetGo AUS Pty Ltd | Australia | Carbon Software Technologies Holdings Limited (100%) | ||
GetGo Technologies Ireland Limited | Ireland | Carbon Software Technologies Holdings Limited (100%) | ||
GetGo Germany GmbH | Germany | Carbon Software Technologies Holdings Limited (100%) |
Schedule 6.01
Existing Indebtedness
None.
Schedule 6.04
Existing Investments
1. | Convertible Promissory Note, dated as of May 19, 2015, by Remeeting, Inc. in favor of Citrix Systems, Inc. in the amount of $150,000, as amended by that certain Allonge between Citrix Systems Inc. and GetGo, Inc., dated as of September 1, 2016. |
2. | GetGo, Inc. owns 392,727 shares of common stock of Cameo Global, Inc. |
Schedule 6.02
Existing Liens
None.
Schedule 6.03
Identified Sales Assets
The following real property and all fixtures and other personal property related thereto:
Hollister Business Park West, numbers 7414, 7416 and 7418 Hollister Avenue, Goleta, CA.
Schedule 6.08
Existing Restrictions
1. Amended and Restated Limited Liability Company Agreement of Grasshopper Group, LLC, a Massachusetts limited liability company, dated as of January 26, 2017.
2. Amended and Restated Limited Liability Company Agreement of GetGo Communications LLC, a Delaware limited liability company, dated as of January 26, 2017.
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption ) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below and the Assignee identified in item 2 below. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified in item 5 below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit and guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the Assigned Interest ). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1. | Assignor: | [ ] | ||
2. | Assignee: | [ ] | ||
[and is an Affiliate/Approved Fund of [ identify Lender ] 1 ] | ||||
3. | Borrower(s): | LOGMEIN, INC., a Delaware corporation | ||
4. | Administrative Agent: | JPMORGAN CHASE BANK, N.A., | ||
as the administrative agent under the Credit Agreement, and any of its Affiliates selected by it to act as administrative agent for any of the facilities provided under the Credit Agreement | ||||
5. | Credit Agreement: | The Amended and Restated Credit Agreement dated as of February 1, 2017, among LOGMEIN, INC. ( LMI ), the |
1 | Select as applicable. |
Exhibit A Page 1
Additional Borrowers parties thereto (together with LMI, collectively the Borrowers and each a Borrower ), the Lenders parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent | ||||
6. | Assigned Interest: |
Facility Assigned
2
|
Aggregate Amount of
Revolving Commitment/Loans for all Lenders |
Amount of Revolving
Commitment/Loans Assigned |
Percentage Assigned
of Revolving Commitment/Loans 3 |
|||||||||
$ | $ | $ | % |
Effective Date: [ ], 20[ ] [ TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR ]
The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers, the other Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignees compliance procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR | ||
[ NAME OF ASSIGNOR ] | ||
By: |
|
|
Name: | ||
Title: | ||
ASSIGNEE | ||
[ NAME OF ASSIGNEE ] | ||
By: |
|
|
Name: | ||
Title: |
2 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., Revolving Commitment, Term Loans, etc.). |
3 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
Exhibit A Page 2
[Consented to and] 4 Accepted: | ||
JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||
By: |
|
|
Name: | ||
Title: | ||
[Consented to:] 5 | ||
[NAME OF RELEVANT PARTY] | ||
By: |
|
|
Name: | ||
Title: |
4 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
5 | To be added only if the consent of LMI and/or other parties ( e.g. , each Issuing Bank) is required by the terms of the Credit Agreement. |
Exhibit A Page 3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties .
1.1. Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of LMI, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by LMI, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, any arranger or any other Lender or their respective Related Parties, and (v) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, any arranger, the Assignor or any other Lender and their respective Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment
Exhibit A Page 4
and Assumption may be executed in any number of counterparts, each of which shall constitute an original, but all of which when taken together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by facsimile, emailed pdf or any other electronic means shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
Exhibit A Page 5
EXHIBIT B
FORM OF BORROWER ACCESSION AGREEMENT
This BORROWER ACCESSION AGREEMENT dated as of [ ], 20[ ], among LOGMEIN, INC., a Delaware corporation ( LMI ), [NAME OF NEW BORROWER], a [ ] (the New Borrower ), and JPMORGAN CHASE BANK, N.A., as administrative agent (the Administrative Agent ).
Reference is made to the Amended and Restated Credit Agreement, dated as of February 1, 2017 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement ), among LMI, each of the Additional Borrowers party thereto (together with LMI, each a Borrower and collectively, the Borrowers ), the Lenders parties thereto, and the Administrative Agent. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Under the Credit Agreement, the Lenders have agreed, upon the terms and subject to the conditions therein set forth, to make Loans to the Borrowers. Each of LMI and the New Borrower represent and warrant that the representations and warranties of LMI in the Credit Agreement relating to the New Borrower and this Borrower Accession Agreement are true and correct in all material respects (or in all respects if already qualified by concepts of materiality) on and as of the date hereof and no Default or Event of Default has occurred and is continuing as a result of the New Borrower becoming a Borrower. LMI agrees that the guarantee of LMI and each other Domestic Borrower contained in the Credit Agreement will apply to the obligations of the New Borrower. Upon execution and delivery of this Borrower Accession Agreement by each of LMI, the New Borrower and the Administrative Agent and the satisfaction of all other requirements under Section 5.09(a) of the Credit Agreement, the New Borrower shall be a party to the Credit Agreement and a Borrower for all purposes thereof, and the New Borrower hereby agrees to be bound by all provisions of the Credit Agreement.
THIS BORROWER ACCESSION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The provisions of Section 9.06 of the Credit Agreement as to counterparts and electronic execution are hereby incorporated into this Borrower Accession Agreement by reference, mutatis mutandis , as if such provisions were fully set forth herein.
Exhibit B Page 1
IN WITNESS WHEREOF, the parties hereto have caused this Borrower Accession Agreement to be duly executed by their authorized officers as of the date first appearing above.
LOGMEIN, INC. | ||
By: |
|
|
Name: | ||
Title: | ||
[NAME OF NEW BORROWER] | ||
By: |
|
|
Name: | ||
Title: | ||
JPMORGAN CHASE BANK, N.A., as | ||
Administrative Agent | ||
By: |
|
|
Name: | ||
Title: |
Exhibit B Page 2
Consented to: 6 | ||
[NAME OF LENDER] | ||
By: |
|
|
Name: | ||
Title: |
6 | Each Lender must consent to the addition of the New Borrower as a Borrower under the Credit Agreement and all other applicable documents related thereto |
Exhibit B Page 3
EXHIBIT C-1
FORM OF U.S. TAX CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement, dated as of February 1, 2017 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement ), among LogMeIn, Inc., a Delaware corporation ( LMI ), each of the Additional Borrowers party thereto (together with LMI, each a Borrower and collectively the Borrowers ), the Lenders parties thereto and JPMorgan Chase Bank, N.A. (the Administrative Agent ).
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a 10 percent shareholder of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question are not effectively connected with the undersigneds conduct of a United States trade or business.
The undersigned has furnished the Administrative Agent and LMI with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform LMI and the Administrative Agent and (2) the undersigned shall have at all times furnished LMI and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] | ||
By: |
|
|
Name: | ||
Title: | ||
Date: |
Exhibit C-1 Page 1
EXHIBIT C-2
FORM OF U.S. TAX CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement, dated as of February 1, 2017 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement ), among LogMeIn, Inc., a Delaware corporation ( LMI ), each of the Additional Borrowers party thereto (together with LMI, each a Borrower and collectively the Borrowers ), the Lenders parties thereto and JPMorgan Chase Bank, N.A. (the Administrative Agent ).
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a 10 percent shareholder of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigneds or its partners/members conduct of a United States trade or business.
The undersigned has furnished the Administrative Agent and LMI with IRS Form W-8IMY accompanied by one of (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of its partners/members claiming the portfolio interest exemption or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform LMI and the Administrative Agent and (2) the undersigned shall have at all times furnished LMI and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] | ||
By: |
|
|
Name: | ||
Title: | ||
Date: |
Exhibit C-2 Page 1
EXHIBIT C-3
FORM OF U.S. TAX CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement, dated as of February 1, 2017 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement ), among LogMeIn, Inc., a Delaware corporation ( LMI ), each of the Additional Borrowers party thereto (together with LMI, each a Borrower and collectively the Borrowers ), the Lenders parties thereto and JPMorgan Chase Bank, N.A. (the Administrative Agent ).
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a 10 percent shareholder of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not effectively connected with the undersigneds conduct of a United States trade or business.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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EXHIBIT C-4
FORM OF U.S. TAX CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement, dated as of February 1, 2017 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement ), among LogMeIn, Inc., a Delaware corporation ( LMI ), each of the Additional Borrowers party thereto (together with LMI, each a Borrower and collectively the Borrowers ), the Lenders parties thereto and JPMorgan Chase Bank, N.A. (the Administrative Agent ).
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a 10 percent shareholder of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigneds or its partners/members conduct of a United States trade or business.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of its partners/members claiming the portfolio interest exemption or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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EXHIBIT D-1
FORM OF AMENDED AND RESTATED
SUBSIDIARY GUARANTEE AGREEMENT
FOR DOMESTIC SUBSIDIARIES
This AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT (this Guaranty ) is made as of February 1, 2017, by and among each of the undersigned (the Initial Guarantors and along with any additional Domestic Subsidiaries (as defined in the Credit Agreement referred to below) which become parties to this Guaranty by executing a supplement hereto in the form attached hereto as Annex I , the Guarantors ) in favor of the Administrative Agent (as defined below), for the ratable benefit of the Secured Parties (as defined below), under the Credit Agreement referred to below.
WITNESSETH
WHEREAS, certain of the Initial Guarantors are parties to that certain Subsidiary Guarantee Agreement dated as of January 22, 2016, made in favor of the Administrative Agent (the Existing Guaranty );
WHEREAS, LOGMEIN, INC., a Delaware corporation ( LMI ), the additional borrowers from time to time parties thereto (together with LMI, each a Borrower and collectively, the Borrowers ), the lenders from time to time parties thereto (the Lenders ), and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (the Administrative Agent ) for itself and the other Lenders, have entered into that certain Amended and Restated Credit Agreement dated as of the date hereof (as the same may be amended, modified, supplemented and/or restated, and as in effect from time to time, the Credit Agreement ), providing, subject to the terms and conditions thereof, for extensions of credit and other financial accommodations to be made by the Lenders to the Borrowers;
WHEREAS, it is a condition precedent to the extensions of credit by the Lenders under the Credit Agreement that each of the Initial Guarantors execute and deliver this Guaranty, whereby each of the Guarantors shall guarantee the payment and performance when due of all Guaranteed Obligations (as defined below); and
WHEREAS, in consideration of the direct and indirect financial and other support that the Borrowers have provided, and such direct and indirect financial and other support as the Borrowers may in the future provide, to the Guarantors, and in order to induce the Lenders and the Administrative Agent to enter into the Credit Agreement, each of the Guarantors is willing to execute and deliver this Guaranty;
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions . Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed thereto in the Credit Agreement.
SECTION 2. Representations, Warranties and Covenants . Each of the Guarantors represents and warrants (which representations and warranties shall also be true and correct in all
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material respects (or, with respect to representations and warranties already qualified by concepts of materiality, in all respects) on and as of each date after the Effective Date of the making of a Loan on the occasion of any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, each of which credit events occurring after the Effective Date shall be deemed to constitute the making by the Guarantors of such representations and warranties in such respects on and as of the date of such credit event) that:
(A) Such Guarantor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite organizational power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
(B) Such Guarantor has the requisite power and authority and legal right to execute and deliver this Guaranty and to perform its obligations hereunder. Such Guarantors execution and delivery of this Guaranty and performance of its obligations hereunder have been duly authorized by all necessary corporate or other applicable organizational actions and, if required, actions by stockholders or other equity holders. This Guaranty has been duly executed and delivered by such Guarantor and constitutes a legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(C) Neither the execution and delivery by such Guarantor of this Guaranty, nor the consummation by it of the transactions herein contemplated, nor compliance by it with the provisions hereof will (i) require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (ii) violate any applicable law or regulation in any material respect, (iii) violate the charter, by-laws or other organizational documents of such Guarantor, (iv) violate any order of any Governmental Authority in any material respect, (v) violate or result in a default under any indenture, agreement or other instrument binding upon such Guarantor or its assets, or give rise to a right thereunder to require any payment to be made by such Guarantor, to the extent that such violation, default or right to require a payment could reasonably be expected to have Material Adverse Effect, or (vi) result in the creation or imposition of any Lien on any asset of such Guarantor other than pursuant to the Loan Documents.
In addition to the foregoing, each of the Guarantors covenants that, until the Payment in Full (as defined below) of the Guaranteed Obligations (as defined below), it will, and, if necessary, will enable the Borrowers to, fully comply with those covenants and agreements of the Borrowers applicable to such Guarantor set forth in the Credit Agreement.
SECTION 3. The Guaranty . Each of the Guarantors hereby absolutely, irrevocably and unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as surety, the full and punctual payment and performance when due (whether at stated maturity, upon acceleration or otherwise) of the following (collectively, the
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Guaranteed Obligations ): (a) all Obligations, including, without limitation, (i) the principal of and interest on each Loan made to any Borrower pursuant to the Credit Agreement, (ii) fees on each Letter of Credit issued pursuant to the Credit Agreement, (iii) any obligations of any Borrower to reimburse LC Disbursements and to provide cash collateral with respect to Letters of Credit, (iv) all other fees and other amounts payable by any Borrower under the Loan Documents, and (v) the punctual and faithful performance, keeping, observance, and fulfillment by each Borrower of all of the agreements, conditions, covenants, and obligations of such Borrower contained in the Loan Documents, and (b) all Secured Swap Obligations and Secured Banking Services Obligations; provided, however, that for any Guarantor, the Secured Swap Obligations shall not include Swap Obligations that constitute Excluded Swap Obligations with respect to such Guarantor. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include all interest, fees and other amounts described in foregoing definition accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding. Upon (x) the failure by any Borrower to pay punctually any such amount or perform such obligation, and (y) such failure continuing beyond any applicable grace or notice and cure period, each of the Guarantors agrees that it shall forthwith on demand pay such amount or perform such obligation at the place and in the manner specified in the relevant Loan Document, Swap Agreement or Banking Services Agreement. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional guaranty of payment and performance and is not a guaranty of collection.
As used in this Guaranty, the following terms have the meanings specified below:
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Qualified ECP Guarantor means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an eligible contract participant under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an eligible contract participant at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
SECTION 4. Guaranty Unconditional . The obligations of each Guarantor hereunder shall be absolute, irrevocable, unconditional and continuing and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by (and, to the fullest extent permitted by applicable law, each Guarantor hereby absolutely, irrevocably and unconditionally waives any defenses (other than the defense that the Guaranteed Obligations have been Paid in Full (as defined below)) to enforcement it may now or hereafter have by reason of):
(A) any extension, renewal, settlement, indulgence, compromise, waiver or release of or with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations, whether (in any such case) by operation of law or otherwise, or any failure or omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations;
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(B) any waiver or amendment or other modification of any Loan Document, Swap Agreement or Banking Services Agreement, including, without limitation, any such modification which may increase the amount of, or the interest rates or fees applicable to, any of the Guaranteed Obligations or change any other term of the Guaranteed Obligations;
(C) any taking, exchange, release, impairment, surrender, compromise, settlement, waiver, subordination, amendment or other modification, with or without consideration, of any present or future security or collateral for the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other obligation of any person or entity with respect to the Guaranteed Obligations or any part thereof, or any nonperfection or invalidity of any present or future security or collateral for the Guaranteed Obligations or any part thereof;
(D) any manner of sale, disposition or application of proceeds of any present or future security or collateral for the Guaranteed Obligations or any part thereof, or of any other assets, to all or part of the Guaranteed Obligations;
(E) any change in the corporate, partnership or other existence, structure or ownership of any Borrower or any other guarantor of any of the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Borrower or any other guarantor of the Guaranteed Obligations, or any of their respective assets, or any resulting release or discharge of any obligation of any Borrower or any other guarantor of any of the Guaranteed Obligations;
(F) the existence of any claim, setoff or other rights which the Guarantors may have at any time against any Borrower, any other guarantor of any of the Guaranteed Obligations, the Administrative Agent, any Secured Party or any other Person, whether in connection herewith or in connection with any unrelated transactions;
(G) the illegality or lack of enforceability or validity of the Guaranteed Obligations or any part thereof or the illegality or lack of genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral now or at any time hereafter securing the Guaranteed Obligations or any part thereof, or any other illegality, invalidity or unenforceability relating to or against any Borrower or any other guarantor of any of the Guaranteed Obligations, for any reason related to any Loan Document, Swap Agreement or Banking Services Agreement or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Borrower or such other guarantor of any of the Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations;
(H) the failure of the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any present or future security or collateral for the Guaranteed Obligations or any part thereof, if any;
(I) the failure of the Administrative Agent or any other Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document, Swap Agreement or Banking Services Agreement or otherwise;
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(J) the failure of any Secured Party to disclose to such Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any Borrower or any other guarantor of any of the Guaranteed Obligations now or hereafter known to such Secured Party; each Guarantor hereby absolutely, irrevocably and unconditionally waiving any duty of the Administrative Agent and any other Secured Party to disclose such information;
(K) the election by, or on behalf of, any one or more of the Secured Parties, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (such statute and any successor statute, as in effect from time to time, the Bankruptcy Code ), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(L) any borrowing or grant of a security interest by any Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(M) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims of the Administrative Agent or any other Secured Party for repayment of all or any part of the Guaranteed Obligations;
(N) the failure of any other guarantor to sign or become party to this Guaranty or any amendment, change, or reaffirmation hereof; or
(O) any other act or omission to act or delay of any kind by any Borrower, any other guarantor of any of the Guaranteed Obligations, the Administrative Agent, any Secured Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 4 , constitute a legal or equitable discharge of any Guarantors obligations hereunder or otherwise reduce, release, prejudice or extinguish its liability under this Guaranty except as provided in Section 5 .
SECTION 5. Discharge Upon Payment In Full or Release: Reinstatement In Certain Circumstances . Each of the Guarantors obligations hereunder shall remain in full force and effect until (a)(i) all Guaranteed Obligations described in clause (a) of the definition thereof have been paid and satisfied in full in cash (other than (A) contingent obligations and (B) Secured Swap Obligations and Secured Banking Services Obligations as to which arrangements reasonably satisfactory to the applicable Swap Provider or Banking Services Provider have been made), and (ii) the termination of all the Revolving Commitments 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 Issuing Bank have been made) (collectively, Paid in Full or Payment in Full ), or (b) with respect to any Guarantor, upon the release of such Guarantor pursuant to Section 9.02(d) of the Credit Agreement. If at any time any payment of the principal of or interest on any Loan, fees on any Letter of Credit, any Reimbursement Obligation or any other fee or other amount payable by any Borrower under any Loan Document, Swap Agreement or Banking Services Agreement is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of such Borrower or any of its Affiliates or otherwise, each of the Guarantors obligations hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time. The parties hereto acknowledge and agree that each of the Guaranteed Obligations shall be due and payable in the same currency as such Guaranteed Obligation is denominated, but if currency control or exchange regulations are imposed in the country which issues such currency with the
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result such currency no longer exists or the relevant Guarantor is not able to make payment in such currency, then all payments to be made by such Guarantor hereunder in such currency shall instead be made when due in the Dollar Amount (as of the date of payment) of such payment due, it being the intention of the parties hereto that each Guarantor takes all risks of the imposition of any such currency control or exchange regulations.
SECTION 6. General Waivers; Additional Waivers .
(A) General Waivers . Each of the Guarantors hereby absolutely, irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, acceptance hereof, presentment, demand or action on delinquency, protest, the benefit of any statutes of limitations and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Borrower, any other guarantor of any of the Guaranteed Obligations, or any other Person.
(B) Additional Waivers . Notwithstanding anything herein to the contrary and to the fullest extent permitted by applicable law, each of the Guarantors hereby absolutely, irrevocably, unconditionally, knowingly, and expressly waives:
(i) any right it may have to revoke this Guaranty as to future indebtedness or notice of acceptance hereof;
(ii) (a) notice of acceptance hereof; (b) notice of any loans or other financial accommodations made or extended under the Loan Documents, any Swap Agreement or any Banking Services Agreement or the creation or existence of any Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations, subject, however, to each Guarantors right to make inquiry of the Administrative Agent to ascertain the amount of the Guaranteed Obligations at any reasonable time; (d) notice of any adverse change in the financial condition of any Borrower or of any other fact that might increase such Guarantors risk hereunder; (e) notice of presentment for payment, demand, protest, and notice thereof as to any instruments among the Loan Documents, Swap Agreements and Banking Services Agreements; (f) notice of any Default or Event of Default; and (g) all other notices (except if such notice is specifically required to be given to such Guarantor hereunder or under the Loan Documents, the applicable Swap Agreement or the applicable Banking Services Agreement) and demands to which such Guarantor might otherwise be entitled;
(iii) its right, if any, to require the Administrative Agent and the other Secured Parties to institute suit against, or to exhaust any rights and remedies which the Administrative Agent and the other Secured Parties has or may have against, the other Guarantors or any third party, or against any collateral provided by the other Guarantors or any third party; and each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations have been Paid in Full) of the other Guarantors or by reason of the cessation from any cause whatsoever of the liability of the other Guarantors in respect thereof;
(iv) (a) any rights to assert against the Administrative Agent and the other Secured Parties any defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time hereafter have against the other Guarantors or any other
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party liable to the Administrative Agent and the other Secured Parties; (b) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, legality, validity or enforceability of the Guaranteed Obligations or any part thereof or any present or future security or collateral therefor; (c) any defense such Guarantor has to performance hereunder, and any right such Guarantor has to be exonerated, arising by reason of: the impairment or suspension of the Administrative Agents and the other Secured Parties rights or remedies against the other Guarantors; the alteration by the Administrative Agent and the other Secured Parties of the Guaranteed Obligations; any discharge of the other Guarantors obligations to the Administrative Agent and the other Secured Parties by operation of law as a result of the Administrative Agents and the other Secured Parties intervention or omission; or the acceptance by the Administrative Agent and the other Secured Parties of anything in partial satisfaction of the Guaranteed Obligations; and (d) the benefit of any statute of limitations affecting such Guarantors liability hereunder or the enforcement thereof, and any act which defers or delays the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantors liability hereunder; and
(v) any defense arising by reason of or deriving from (a) any claim or defense based upon an election of remedies by the Administrative Agent and the other Secured Parties; or (b) any election by the Administrative Agent and the other Secured Parties under Section 1111(b) of Title 11 of the Bankruptcy Code, to limit the amount of, or any collateral securing, its claim against the Guarantors;
in each case, other than the Payment in Full of the Guaranteed Obligations.
SECTION 7. Subordination of Subrogation; and Subordination of Intercompany Indebtedness .
(A) Subordination of Subrogation . Until the Guaranteed Obligations have been Paid in Full, (x) the Guarantors (i) shall have no right of subrogation with respect to the Guaranteed Obligations and (ii) waive any right to enforce any remedy which the Secured Parties now have or may hereafter have against any Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other Person, and (y) the Guarantors waive any benefit of, and any right to participate in, any present or future security or collateral for the Guaranteed Obligations or any part thereof. Should any Guarantor have the right, notwithstanding the foregoing, to exercise its subrogation rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off that such Guarantor may have to the Payment in Full of the Guaranteed Obligations and (B) waives any and all defenses available to a surety, guarantor or accommodation co-obligor until the Guaranteed Obligations are Paid in Full. Each Guarantor acknowledges and agrees that this subordination is intended to benefit the Administrative Agent and the other Secured Parties and shall not limit or otherwise affect such Guarantors liability hereunder or the enforceability of this Guaranty, and that the Administrative Agent, the other Secured Parties and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 7(A) .
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(B) Subordination of Intercompany Indebtedness . Each Guarantor agrees that any and all claims of such Guarantor against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations (each, an Obligor ), or against any of their respective properties, in each case with respect to any Intercompany Indebtedness (as hereinafter defined), shall be subordinate and subject in right of payment to the prior Payment in Full of all Guaranteed Obligations; provided that, as long as no Event of Default has occurred and is continuing, such Guarantor may receive payments of principal, interest and other amounts from any Obligor with respect to Intercompany Indebtedness, in each case made in the ordinary course of business. Notwithstanding any right of any Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all rights, liens and security interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of any other Obligor shall be and are subordinated to the rights of the Secured Parties in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Guaranteed Obligations have been Paid in Full. If all or any part of the assets of any Obligor, or the proceeds thereof, are subject to any distribution, division or application to the creditors of such Obligor, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Obligor is dissolved or if substantially all of the assets of any such Obligor are sold, then, and in any such event (such events being herein referred to as an Insolvency Event ), any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any Obligor to any Guarantor ( Intercompany Indebtedness ) shall, in each case, while an Event of Default shall have occurred and is continuing, be paid or delivered directly to the Administrative Agent for application on any of the Guaranteed Obligations, due or to become due, until such Guaranteed Obligations have first been Paid in Full. Should any payment, distribution, security or instrument or proceeds thereof be received by the applicable Guarantor upon or with respect to the Intercompany Indebtedness after any Insolvency Event and while an Event of Default shall have occurred and is continuing but prior to the Payment in Full of the Guaranteed Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Secured Parties and shall forthwith deliver the same to the Administrative Agent, for the benefit of the Secured Parties, in precisely the form received (except for the endorsement or assignment of such Guarantor where necessary), for application to any of the Guaranteed Obligations, due or not due, and, until so delivered, the same shall be held in trust by such Guarantor as the property of the Secured Parties. If such Guarantor fails to make any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its officers or employees is irrevocably authorized to make the same. Each Guarantor agrees that, except as otherwise permitted by the Credit Agreement, until the Guaranteed Obligations have been Paid in Full, no Guarantor will assign or transfer to any Person (other than the Administrative Agent) any claim any such Guarantor has or may have against any Obligor.
SECTION 8. Contribution with Respect to Guaranteed Obligations .
(A) To the extent that any Guarantor shall make a payment under this Guaranty (a Guarantor Payment ) which, taking into account all other Guarantor Payments then
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previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Guarantors Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following Payment in Full of the Guaranteed Obligations, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(B) As of any date of determination, the Allocable Amount of any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions.
(C) This Section 8 is intended only to define the relative rights of the Guarantors, and nothing set forth in this Section 8 is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Guaranty.
(D) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing.
(E) The rights of the indemnifying Guarantors against other Guarantors under this Section 8 shall be exercisable upon the Payment in Full of the Guaranteed Obligations.
SECTION 9. Limitation of Guaranty . Notwithstanding any other provision of this Guaranty, the amount guaranteed by each Guarantor hereunder shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. In determining the limitations, if any, on the amount of any Guarantors obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification or contribution which such Guarantor may have under this Guaranty, any other agreement or applicable law shall be taken into account.
SECTION 10. Stay of Acceleration . If acceleration of the time for payment of any amount payable by any Borrower under any Loan Document is stayed upon the insolvency, bankruptcy or reorganization of such Borrower, all such amounts otherwise subject to acceleration under the terms of any Loan Document shall nonetheless be payable by each of the Guarantors hereunder forthwith on demand by the Administrative Agent.
SECTION 11. Notices . All notices, requests and other communications to any party hereunder shall be given in the manner prescribed in Section 9.01 of the Credit Agreement with
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respect to the Administrative Agent at its notice address therein and with respect to any Guarantor, in care of LMI at the address of LMI set forth in the Credit Agreement or such other address or telecopy number as such party may hereafter specify for such purpose by notice to the Administrative Agent in accordance with the provisions of such Section 9.01.
SECTION 12. No Waivers . No failure or delay by the Administrative Agent or any other Secured Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in this Guaranty and the other Loan Documents shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13. Successors and Assigns . This Guaranty is for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and permitted assigns; provided , that, except as permitted pursuant to the Credit Agreement (or as permitted pursuant to the consent of the Lenders required pursuant to the Credit Agreement), no Guarantor shall have any right to assign its rights or obligations hereunder, and any such assignment in violation of this Section 13 shall be null and void; and in the event of an assignment of any amounts payable under the Loan Documents in accordance with the respective terms thereof, the rights hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty shall be binding upon each of the Guarantors and their respective successors and assigns.
SECTION 14. Changes in Writing . Other than in connection with the addition of additional Subsidiaries, which become parties hereto by executing a supplement hereto in the form attached as Annex I , neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated orally, but only in writing signed by each of the Guarantors and the Administrative Agent.
SECTION 15. GOVERNING LAW . THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL .
(A) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, BOROUGH OF MANHATTAN, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING HEREIN SHALL AFFECT ANY RIGHT THAT ANY HOLDER OF OBLIGATIONS MAY OTHERWISE HAVE TO
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BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGAINST ANY GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY JURISDICTION.
(B) EACH PARTY TO THIS AGREEMENT (AND EACH SECURED PARTY BY ACCEPTING THE BENEFITS OF THIS AGREEMENT) HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY IN ANY COURT REFERRED TO IN PARAGRAPH (A) ABOVE. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.01 OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY TO THIS GUARANTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES LMI, AT ITS ADDRESS SET FORTH IN SECTION 9.01 OF THE CREDIT AGREEMENT, AS THE DESIGNEE, APPOINTEE AND AGENT OF SUCH GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF SUCH GUARANTOR, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY.
(D) EACH PARTY HERETO HEREBY 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 ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 17. No Strict Construction . The parties hereto have participated jointly in the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Guaranty.
SECTION 18. Expenses of Enforcement, etc . The Guarantors agree to reimburse the Secured Parties for any reasonable and documented out-of-pocket expenses (including the
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reasonable and documented fees, charges and disbursements of any counsel for any Secured Party) incurred by any Secured Party in connection with the collection of amounts due under this Guaranty and the enforcement or protection of its other rights in connection with this Guaranty, including its rights under this Section and all such reasonable and documented out-of pocket expenses incurred during any workout, restructuring or negotiations in respect of the Guaranteed Obligations; provided that the Loans Parties shall only be required to pay the reasonable and documented out-of-pocket legal expenses of a single counsel for the Secured Parties and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all such persons (and, in the case of a conflict of interest where the person or persons affected by such conflict informs LMI of such conflict, one additional single counsel for all similarly situated persons). The Administrative Agent agrees to distribute payments received from any of the Guarantors hereunder to the other Secured Parties on a pro rata basis for application in accordance with the terms of the Credit Agreement.
SECTION 19. Setoff . At any time after all or any part of the Guaranteed Obligations have become due and payable (by acceleration or otherwise), each Secured Party and any of its Affiliates may, without notice to any Guarantor and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply in accordance with the terms of the Credit Agreement or the applicable Swap Agreement or Banking Services Agreement toward the payment of all or any part of the Guaranteed Obligations (i) any indebtedness due or to become due from such Secured Party or the Administrative Agent to any Guarantor, and (ii) any moneys, credits or other property belonging to any Guarantor, at any time held by or coming into the possession of such Secured Party or any of its Affiliates.
SECTION 20. Financial Information . Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of each of the Borrower, each of the other Guarantors, and any and all endorsers and/or other guarantors of all or any part of the Guaranteed Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that none of the Secured Parties shall have any duty to advise such Guarantor of information known to any of them regarding such condition or any such circumstances. In the event any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to a Guarantor, such Secured Party shall be under no obligation (i) to undertake any investigation not a part of its regular business routine, (ii) to disclose any information which such Secured Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information to such Guarantor.
SECTION 21. Severability . Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.
SECTION 22. Merger . This Guaranty represents the final agreement of each of the Guarantors with respect to the matters contained herein and may not be contradicted by evidence of prior or contemporaneous agreements, or subsequent oral agreements, between the Guarantor and any Secured Party.
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SECTION 23. Headings . Section headings in this Guaranty are for convenience of reference only and shall not govern the interpretation of any provision of this Guaranty.
SECTION 24. Judgment Currency . If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due from any Guarantor hereunder in the currency expressed to be payable herein (the specified currency ) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agents main New York City office on the Business Day preceding that on which final, non-appealable judgment is given. The obligations of each Guarantor in respect of any sum due hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by any Secured Party of any sum adjudged to be so due in such other currency such Secured Party may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Secured Party in the specified currency, each Guarantor agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Secured Party against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Secured Party in the specified currency and (b) amounts shared with other Secured Parties as a result of allocations of such excess as a disproportionate payment to such other Secured Party under Section 2.18 of the Credit Agreement, such Secured Party agrees, by accepting the benefits hereof, to remit such excess to such Guarantor.
SECTION 25. [Reserved]
SECTION 26. Swap Providers and Banking Services Providers . No Swap Provider or Banking Services Provider that obtains the benefits of this Guaranty by virtue of the provisions of this Guaranty or any other Loan Document shall have any right to notice of any action or to consent to, direct or object to any action under this Guaranty or under any other Loan Document or otherwise 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 Guaranty 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, Secured Swap Obligations and Secured Banking Services Obligations unless the Administrative Agent has received written notice of such Guaranteed Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Swap Providers and Banking Services Providers. Each Swap Provider and Banking Services Provider that is not a party to this Guaranty shall, by accepting the benefits of this Guaranty, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VIII of the Credit Agreement for itself and its Affiliates as if a Lender party thereto.
SECTION 27. Keepwell . Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Guarantor to honor all of its obligations under this Guaranty in respect of Secured Swap Obligations; provided , that each Qualified ECP Guarantor shall only be liable under this Section 27 for the maximum amount of such liability
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that can be hereby incurred without rendering its obligations under this Section 27 or otherwise under this Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount. The obligations and undertakings of each Qualified ECP Guarantor under this Section 27 shall remain in full force and effect until the Guaranteed Obligations have been Paid in Full. Each Qualified ECP Guarantor intends that this Section 27 constitute, and this Section 27 shall be deemed to constitute, a keepwell, support or other agreement for the benefit of each other Guarantor for all purposes of the Commodity Exchange Act.
SECTION 28. Amendment and Restatement . On the Effective Date, (a) this Guaranty shall amend and restate the Existing Guaranty in its entirety but, for the avoidance of doubt, shall not constitute a novation of the parties rights and obligations thereunder, and (b) the rights and obligations of the parties hereto evidenced by the Existing Guaranty shall be evidenced by this Guaranty.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the Initial Guarantors has caused this Guaranty to be duly executed by its authorized officer as of the day and year first above written.
MARVASOL INC., a Delaware corporation | ||
By: |
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Name: | ||
Title: | ||
[INSERT OTHER INITIAL GUARANTORS] |
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Acknowledged and Agreed as of the date first above written: |
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JPMORGAN CHASE BANK, N.A., as Administrative Agent |
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By: |
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Name: | ||
Title: |
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ANNEX I TO AMENDED AND RESTATED
SUBSIDIARY GUARANTEE AGREEMENT
FOR DOMESTIC SUBSIDIARIES
Reference is hereby made to the Amended and Restated Guarantee Agreement (the Guaranty ) made as of February 1, 2017, by and among [NAMES OF INITIAL GUARANTORS] (collectively, the Initial Guarantors , and along with any additional Domestic Subsidiaries which become parties thereto and together with the undersigned, the Guarantors ), in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, under the Credit Agreement. Capitalized terms used herein and not defined herein shall have the meanings given to them in the Guaranty. By its execution below, the undersigned [NAME OF NEW GUARANTOR], a [state of incorporation/organization] [corporation] [partnership] [limited liability company], agrees to become, and does hereby become, a Guarantor under the Guaranty and agrees to be bound by such Guaranty as if originally a party thereto. By its execution below, the undersigned represents and warrants as to itself that all of the representations and warranties contained in Section 2 of the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR] has executed and delivered this Annex I counterpart to the Guaranty as of this day of , 20 .
[NAME OF NEW GUARANTOR] | ||
By: |
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Its: |
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EXHIBIT D-2
FORM OF SUBSIDIARY GUARANTEE AGREEMENT
FOR FOREIGN SUBSIDIARIES
This SUBSIDIARY GUARANTEE AGREEMENT (this Guaranty ) is made as of [ ], 20[ ], by and among each of the undersigned (the Initial Guarantors and along with any additional Foreign Subsidiaries (as defined in the Credit Agreement referred to below) which become parties to this Guaranty by executing a supplement hereto in the form attached hereto as Annex I , the Guarantors ) in favor of the Administrative Agent (as defined below), for the ratable benefit of the Secured Parties (as defined below), under the Credit Agreement referred to below.
WITNESSETH
WHEREAS, LOGMEIN, INC., a Delaware corporation ( LMI ), the additional borrowers from time to time parties thereto (together with LMI, each a Borrower and collectively, the Borrowers ), the lenders from time to time parties thereto (the Lenders ), and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent (the Administrative Agent ) for itself and the other Lenders, have entered into that certain Amended and Restated Credit Agreement dated as of February 1, 2017 (as the same may be amended, modified, supplemented and/or restated, and as in effect from time to time, the Credit Agreement ), providing, subject to the terms and conditions thereof, for extensions of credit and other financial accommodations to be made by the Lenders to the Borrowers;
WHEREAS, it is a condition precedent to the extensions of credit by the Lenders under the Credit Agreement that each of the Initial Guarantors execute and deliver this Guaranty, whereby each of the Guarantors shall guarantee the payment and performance when due of all Guaranteed Obligations (as defined below); and
WHEREAS, in consideration of the direct and indirect financial and other support that the Borrowers have provided, and such direct and indirect financial and other support as the Borrowers may in the future provide, to the Guarantors, and in order to induce the Lenders and the Administrative Agent to enter into the Credit Agreement, each of the Guarantors is willing to execute and deliver this Guaranty;
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions . Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed thereto in the Credit Agreement.
SECTION 2. Representations, Warranties and Covenants . Each of the Guarantors represents and warrants (which representations and warranties shall also be true and correct in all material respects (or, with respect to representations and warranties already qualified by concepts of materiality, in all respects) on and as of each date after the Effective Date of the making of a Loan on the occasion of any Borrowing or the issuance, amendment, renewal or extension of any
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Letter of Credit, each of which credit events occurring after the Effective Date shall be deemed to constitute the making by the Guarantors of such representations and warranties in such respects on and as of the date of such credit event) that:
(A) Such Guarantor is duly organized or incorporated, validly existing and in good standing (or the equivalent thereof) under the laws of the jurisdiction of its organization or incorporation, has all requisite organizational power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing (or the equivalent thereof) in, every jurisdiction where such qualification is required.
(B) Such Guarantor has the requisite power and authority and legal right to execute and deliver this Guaranty and to perform its obligations hereunder. Such Guarantors execution and delivery of this Guaranty and performance of its obligations hereunder have been duly authorized by all necessary corporate or other applicable organizational actions and, if required, actions by stockholders or other equity holders. This Guaranty has been duly executed and delivered by such Guarantor and constitutes a legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(C) Neither the execution and delivery by such Guarantor of this Guaranty, nor the consummation by it of the transactions herein contemplated, nor compliance by it with the provisions hereof will (i) require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or the government or governmental body of any countries or nations outside the United States of America ( Foreign Governmental Authority ), except such as have been obtained or made and are in full force and effect, (ii) violate any applicable U.S. and foreign law or regulation in any material respect, (iii) violate the charter, by-laws or other organizational documents of such Guarantor, (iv) violate any order of any Governmental Authority or Foreign Governmental Authority in any material respect, (v) violate or result in a default under any indenture, agreement or other instrument binding upon such Guarantor or its assets, or give rise to a right thereunder to require any payment to be made by such Guarantor, to the extent that such violation, default or right to require a payment could reasonably be expected to have Material Adverse Effect, (vi) result in the creation or imposition of any Lien on any asset of such Guarantor other than pursuant to the Loan Documents or (vii) would cause material adverse tax (including foreign tax) consequences to any Borrower or any Subsidiary.
In addition to the foregoing, each of the Guarantors covenants that, until the Payment in Full (as defined below) of the Guaranteed Obligations (as defined below), it will, and, if necessary, will enable the Borrowers to, fully comply with those covenants and agreements of the Borrowers applicable to such Guarantor set forth in the Credit Agreement.
SECTION 3. The Guaranty . Each of the Guarantors hereby absolutely, irrevocably and unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as surety, the full and punctual payment and performance when due
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(whether at stated maturity, upon acceleration or otherwise) of the following (collectively, the Guaranteed Obligations ): (a) all Obligations of the Foreign Borrowers, including, without limitation, (i) the principal of and interest on each Loan made to any Foreign Borrower pursuant to the Credit Agreement, (ii) fees on each Letter of Credit issued to any Foreign Borrower pursuant to the Credit Agreement, (iii) any obligations of any Foreign Borrower to reimburse LC Disbursements and to provide cash collateral with respect to Letters of Credit, (iv) all other fees and other amounts payable by any Foreign Borrower under the Loan Documents, and (v) the punctual and faithful performance, keeping, observance, and fulfillment by each Foreign Borrower of all of the agreements, conditions, covenants, and obligations of such Foreign Borrower contained in the Loan Documents, and (b) all Secured Swap Obligations and Secured Banking Services Obligations of any Foreign Borrower; provided, however, that for any Guarantor, the Secured Swap Obligations shall not include Swap Obligations that constitute Excluded Swap Obligations with respect to such Guarantor. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include all interest, fees and other amounts described in foregoing definition accruing during the pendency of any bankruptcy, insolvency, receivership, examinership or other similar proceeding, regardless of whether allowed or allowable in such proceeding. Upon (x) the failure by any Foreign Borrower to pay punctually any such amount or perform such obligation, and (y) such failure continuing beyond any applicable grace or notice and cure period, each of the Guarantors agrees that it shall forthwith on demand pay such amount or perform such obligation at the place and in the manner specified in the relevant Loan Document, Swap Agreement or Banking Services Agreement. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional guaranty of payment and performance and is not a guaranty of collection.
As used in this Guaranty, the following terms have the meanings specified below:
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Qualified ECP Guarantor means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding US$10,000,000 at the time the relevant Guarantee becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an eligible contract participant under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an eligible contract participant at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
SECTION 4. Guaranty Unconditional . The obligations of each Guarantor hereunder shall be absolute, irrevocable, unconditional and continuing and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by (and, to the fullest extent permitted by applicable law, each Guarantor hereby absolutely, irrevocably and unconditionally waives any defenses (other than the defense that the Guaranteed Obligations have been Paid in Full (as defined below)) to enforcement it may now or hereafter have by reason of):
(A) any extension, renewal, settlement, indulgence, compromise, waiver or release of or with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations, whether (in any such case) by operation of law or otherwise, or any failure or
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omission to enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or with respect to any obligation of any other guarantor of any of the Guaranteed Obligations;
(B) any waiver or amendment or other modification of any Loan Document, Swap Agreement or Banking Services Agreement, including, without limitation, any such modification which may increase the amount of, or the interest rates or fees applicable to, any of the Guaranteed Obligations or change any other term of the Guaranteed Obligations;
(C) any taking, exchange, release, impairment, surrender, compromise, settlement, waiver, subordination, amendment or other modification, with or without consideration, of any present or future security or collateral for the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or any other obligation of any person or entity with respect to the Guaranteed Obligations or any part thereof, or any nonperfection or invalidity of any present or future security or collateral for the Guaranteed Obligations or any part thereof;
(D) any manner of sale, disposition or application of proceeds of any present or future security or collateral for the Guaranteed Obligations or any part thereof, or of any other assets, to all or part of the Guaranteed Obligations;
(E) any change in the corporate, partnership or other existence, structure or ownership of any Borrower or any other guarantor of any of the Guaranteed Obligations, or any insolvency, bankruptcy, examinership, reorganization or other similar proceeding affecting any Borrower or any other guarantor of the Guaranteed Obligations, or any of their respective assets, or any resulting release or discharge of any obligation of any Borrower or any other guarantor of any of the Guaranteed Obligations;
(F) the existence of any claim, setoff or other rights which the Guarantors may have at any time against any Borrower, any other guarantor of any of the Guaranteed Obligations, the Administrative Agent, any Secured Party or any other Person, whether in connection herewith or in connection with any unrelated transactions;
(G) the illegality or lack of enforceability or validity of the Guaranteed Obligations or any part thereof or the illegality or lack of genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral now or at any time hereafter securing the Guaranteed Obligations or any part thereof, or any other illegality, invalidity or unenforceability relating to or against any Borrower or any other guarantor of any of the Guaranteed Obligations, for any reason related to any Loan Document, Swap Agreement or Banking Services Agreement or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Borrower or such other guarantor of any of the Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations;
(H) the failure of the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any present or future security or collateral for the Guaranteed Obligations or any part thereof, if any;
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(I) the failure of the Administrative Agent or any other Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document, Swap Agreement or Banking Services Agreement or otherwise;
(J) the failure of any Secured Party to disclose to such Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any Borrower or any other guarantor of any of the Guaranteed Obligations now or hereafter known to such Secured Party; each Guarantor hereby absolutely, irrevocably and unconditionally waiving any duty of the Administrative Agent and any other Secured Party to disclose such information;
(K) the election by, or on behalf of, any one or more of the Secured Parties, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (such statute and any successor statute, as in effect from time to time, the Bankruptcy Code ), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(L) any borrowing or grant of a security interest by any Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(M) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims of the Administrative Agent or any other Secured Party for repayment of all or any part of the Guaranteed Obligations;
(N) the failure of any other guarantor to sign or become party to this Guaranty or any amendment, change, or reaffirmation hereof; or
(O) any other act or omission to act or delay of any kind by any Borrower, any other guarantor of any of the Guaranteed Obligations, the Administrative Agent, any Secured Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 4 , constitute a legal or equitable discharge of any Guarantors obligations hereunder or otherwise reduce, release, prejudice or extinguish its liability under this Guaranty except as provided in Section 5 .
SECTION 5. Discharge Upon Payment In Full or Release: Reinstatement In Certain Circumstances . Each of the Guarantors obligations hereunder shall remain in full force and effect until (a)(i) all Guaranteed Obligations described in clause (a) of the definition thereof have been paid and satisfied in full in cash (other than (A) contingent obligations and (B) Secured Swap Obligations and Secured Banking Services Obligations as to which arrangements reasonably satisfactory to the applicable Swap Provider or Banking Services Provider have been made), and (ii) the termination of all the Revolving Commitments 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 Issuing Bank have been made) (collectively, Paid in Full or Payment in Full ), or (b) with respect to any Guarantor, upon the release of such Guarantor pursuant to Section 9.02(d) of the Credit Agreement. If at any time any payment of the principal of or interest on any Loan, fees on any Letter of Credit, any Reimbursement Obligation or any other fee or other amount payable by any Foreign Borrower under any Loan Document, Swap Agreement or Banking Services Agreement is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy, examinership or reorganization of such Foreign Borrower or any of its Affiliates or otherwise, each of the Guarantors obligations
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hereunder with respect to such payment shall be reinstated as though such payment had been due but not made at such time. In the case of examinership, the foregoing is subject at all times to compliance with the procedures set out in section 25 A of the Companies (Amendment) Act, 1990 (as amended). The parties hereto acknowledge and agree that each of the Guaranteed Obligations shall be due and payable in the same currency as such Guaranteed Obligation is denominated, but if currency control or exchange regulations are imposed in the country which issues such currency with the result such currency no longer exists or the relevant Guarantor is not able to make payment in such currency, then all payments to be made by such Guarantor hereunder in such currency shall instead be made when due in the Dollar Amount (as of the date of payment) of such payment due, it being the intention of the parties hereto that each Guarantor takes all risks of the imposition of any such currency control or exchange regulations.
SECTION 6. General Waivers; Additional Waivers .
(A) General Waivers . Each of the Guarantors hereby absolutely, irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, acceptance hereof, presentment, demand or action on delinquency, protest, the benefit of any statutes of limitations and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against any Borrower, any other guarantor of any of the Guaranteed Obligations, or any other Person.
(B) Additional Waivers . Notwithstanding anything herein to the contrary and to the fullest extent permitted by applicable law, each of the Guarantors hereby absolutely, irrevocably, unconditionally, knowingly, and expressly waives:
(i) any right it may have to revoke this Guaranty as to future indebtedness or notice of acceptance hereof;
(ii) (a) notice of acceptance hereof; (b) notice of any loans or other financial accommodations made or extended under the Loan Documents, any Swap Agreement or any Banking Services Agreement or the creation or existence of any Guaranteed Obligations; (c) notice of the amount of the Guaranteed Obligations, subject, however, to each Guarantors right to make inquiry of the Administrative Agent to ascertain the amount of the Guaranteed Obligations at any reasonable time; (d) notice of any adverse change in the financial condition of any Borrower or of any other fact that might increase such Guarantors risk hereunder; (e) notice of presentment for payment, demand, protest, and notice thereof as to any instruments among the Loan Documents, Swap Agreements and Banking Services Agreements; (f) notice of any Default or Event of Default; and (g) all other notices (except if such notice is specifically required to be given to such Guarantor hereunder or under the Loan Documents, the applicable Swap Agreement or the applicable Banking Services Agreement) and demands to which such Guarantor might otherwise be entitled;
(iii) its right, if any, to require the Administrative Agent and the other Secured Parties to institute suit against, or to exhaust any rights and remedies which the Administrative Agent and the other Secured Parties has or may have against, the other Guarantors or any third party, or against any collateral provided by the other Guarantors or any third party; and each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations have been Paid in Full) of the other Guarantors or by reason of the cessation from any cause whatsoever of the liability of the other Guarantors in respect thereof;
Exhibit D-2 Page 6
(iv) (a) any rights to assert against the Administrative Agent and the other Secured Parties any defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time hereafter have against the other Guarantors or any other party liable to the Administrative Agent and the other Secured Parties; (b) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, legality, validity or enforceability of the Guaranteed Obligations or any part thereof or any present or future security or collateral therefor; (c) any defense such Guarantor has to performance hereunder, and any right such Guarantor has to be exonerated, arising by reason of: the impairment or suspension of the Administrative Agents and the other Secured Parties rights or remedies against the other Guarantors; the alteration by the Administrative Agent and the other Secured Parties of the Guaranteed Obligations; any discharge of the other Guarantors obligations to the Administrative Agent and the other Secured Parties by operation of law as a result of the Administrative Agents and the other Secured Parties intervention or omission; or the acceptance by the Administrative Agent and the other Secured Parties of anything in partial satisfaction of the Guaranteed Obligations; and (d) the benefit of any statute of limitations affecting such Guarantors liability hereunder or the enforcement thereof, and any act which defers or delays the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantors liability hereunder; and
(v) any defense arising by reason of or deriving from (a) any claim or defense based upon an election of remedies by the Administrative Agent and the other Secured Parties; or (b) any election by the Administrative Agent and the other Secured Parties under Section 1111(b) of Title 11 of the Bankruptcy Code, to limit the amount of, or any collateral securing, its claim against the Guarantors;
in each case, other than the Payment in Full of the Guaranteed Obligations.
SECTION 7. Subordination of Subrogation; and Subordination of Intercompany Indebtedness .
(A) Subordination of Subrogation . Until the Guaranteed Obligations have been Paid in Full, (x) the Guarantors (i) shall have no right of subrogation with respect to the Guaranteed Obligations and (ii) waive any right to enforce any remedy which the Secured Parties now have or may hereafter have against any Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other Person, and (y) the Guarantors waive any benefit of, and any right to participate in, any present or future security or collateral for the Guaranteed Obligations or any part thereof. Should any Guarantor have the right, notwithstanding the foregoing, to exercise its subrogation rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off that such Guarantor may have to the Payment in Full of the Guaranteed Obligations and (B) waives any and all defenses available to a surety, guarantor or accommodation co-obligor until the Guaranteed
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Obligations are Paid in Full. Each Guarantor acknowledges and agrees that this subordination is intended to benefit the Administrative Agent and the other Secured Parties and shall not limit or otherwise affect such Guarantors liability hereunder or the enforceability of this Guaranty, and that the Administrative Agent, the other Secured Parties and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 7(A) .
(B) Subordination of Intercompany Indebtedness . Each Guarantor agrees that any and all claims of such Guarantor against any Borrower or any other guarantor of all or any part of the Guaranteed Obligations (each, an Obligor ), or against any of their respective properties, in each case with respect to any Intercompany Indebtedness (as hereinafter defined), shall be subordinate and subject in right of payment to the prior Payment in Full of all Guaranteed Obligations; provided that, as long as no Event of Default has occurred and is continuing, such Guarantor may receive payments of principal, interest and other amounts from any Obligor with respect to Intercompany Indebtedness, in each case made in the ordinary course of business. Notwithstanding any right of any Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all rights, liens and security interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of any other Obligor shall be and are subordinated to the rights of the Secured Parties in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Guaranteed Obligations have been Paid in Full. If all or any part of the assets of any Obligor, or the proceeds thereof, are subject to any distribution, division or application to the creditors of such Obligor, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership, examinership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Obligor is dissolved or if substantially all of the assets of any such Obligor are sold, then, and in any such event (such events being herein referred to as an Insolvency Event ), any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any Obligor to any Guarantor ( Intercompany Indebtedness ) shall, in each case, while an Event of Default shall have occurred and is continuing, be paid or delivered directly to the Administrative Agent for application on any of the Guaranteed Obligations, due or to become due, until such Guaranteed Obligations have first been Paid in Full. Should any payment, distribution, security or instrument or proceeds thereof be received by the applicable Guarantor upon or with respect to the Intercompany Indebtedness after any Insolvency Event and while an Event of Default shall have occurred and is continuing but prior to the Payment in Full of the Guaranteed Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Secured Parties and shall forthwith deliver the same to the Administrative Agent, for the benefit of the Secured Parties, in precisely the form received (except for the endorsement or assignment of such Guarantor where necessary), for application to any of the Guaranteed Obligations, due or not due, and, until so delivered, the same shall be held in trust by such Guarantor as the property of the Secured Parties. If such Guarantor fails to make any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its officers or employees is irrevocably authorized to make the same. Each Guarantor agrees that, except as otherwise permitted by the Credit Agreement, until the Guaranteed Obligations have been Paid in Full, no Guarantor will assign or transfer to any Person (other than the Administrative Agent) any claim any such Guarantor has or may have against any Obligor.
Exhibit D-2 Page 8
SECTION 8. Contribution with Respect to Guaranteed Obligations .
(A) To the extent that any Guarantor shall make a payment under this Guaranty (a Guarantor Payment ) which, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount which otherwise would have been paid by or attributable to such Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Guarantors Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following Payment in Full of the Guaranteed Obligations, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(B) As of any date of determination, the Allocable Amount of any Guarantor shall be equal to the excess of the fair saleable value of the property of such Guarantor over the total liabilities of such Guarantor (including the maximum amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments made by other Guarantors as of such date in a manner to maximize the amount of such contributions.
(C) This Section 8 is intended only to define the relative rights of the Guarantors, and nothing set forth in this Section 8 is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Guaranty.
(D) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor or Guarantors to which such contribution and indemnification is owing.
(E) The rights of the indemnifying Guarantors against other Guarantors under this Section 8 shall be exercisable upon the Payment in Full of the Guaranteed Obligations.
SECTION 9. Limitation of Guaranty . Notwithstanding any other provision of this Guaranty, the amount guaranteed by each Guarantor hereunder shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar U.S. and foreign statute or common law. In determining the limitations, if any, on the amount of any Guarantors obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification or contribution which such Guarantor may have under this Guaranty, any other agreement or applicable law shall be taken into account.
Exhibit D-2 Page 9
SECTION 10. Stay of Acceleration . If acceleration of the time for payment of any amount payable by any Borrower under any Loan Document is stayed upon the insolvency, bankruptcy or reorganization of such Borrower, all such amounts otherwise subject to acceleration under the terms of any Loan Document shall nonetheless be payable by each of the Guarantors hereunder forthwith on demand by the Administrative Agent.
SECTION 11. Notices . All notices, requests and other communications to any party hereunder shall be given in the manner prescribed in Section 9.01 of the Credit Agreement with respect to the Administrative Agent at its notice address therein and with respect to any Guarantor, in care of LMI at the address of LMI set forth in the Credit Agreement or such other address or telecopy number as such party may hereafter specify for such purpose by notice to the Administrative Agent in accordance with the provisions of such Section 9.01.
SECTION 12. No Waivers . No failure or delay by the Administrative Agent or any other Secured Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in this Guaranty and the other Loan Documents shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13. Successors and Assigns . This Guaranty is for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and permitted assigns; provided , that, except as permitted pursuant to the Credit Agreement (or as permitted pursuant to the consent of the Lenders required pursuant to the Credit Agreement), no Guarantor shall have any right to assign its rights or obligations hereunder, and any such assignment in violation of this Section 13 shall be null and void; and in the event of an assignment of any amounts payable under the Loan Documents in accordance with the respective terms thereof, the rights hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty shall be binding upon each of the Guarantors and their respective successors and assigns.
SECTION 14. Changes in Writing . Other than in connection with the addition of additional Subsidiaries, which become parties hereto by executing a supplement hereto in the form attached as Annex I , neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated orally, but only in writing signed by each of the Guarantors and the Administrative Agent.
SECTION 15. GOVERNING LAW . THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL .
(A) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, BOROUGH OF MANHATTAN, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY
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APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING HEREIN SHALL AFFECT ANY RIGHT THAT ANY HOLDER OF OBLIGATIONS MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGAINST ANY GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY JURISDICTION.
(B) EACH PARTY TO THIS AGREEMENT (AND EACH SECURED PARTY BY ACCEPTING THE BENEFITS OF THIS AGREEMENT) HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY IN ANY COURT REFERRED TO IN PARAGRAPH (A) ABOVE. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.01 OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY TO THIS GUARANTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES LMI, AT ITS ADDRESS SET FORTH IN SECTION 9.01 OF THE CREDIT AGREEMENT, AS THE DESIGNEE, APPOINTEE AND AGENT OF SUCH GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF SUCH GUARANTOR, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY.
(D) EACH PARTY HERETO HEREBY 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 ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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SECTION 17. No Strict Construction . The parties hereto have participated jointly in the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Guaranty.
SECTION 18. Expenses of Enforcement, etc . The Guarantors agree to reimburse the Secured Parties for any reasonable and documented out-of-pocket expenses (including the reasonable and documented fees, charges and disbursements of any counsel for any Secured Party) incurred by any Secured Party in connection with the collection of amounts due under this Guaranty and the enforcement or protection of its other rights in connection with this Guaranty, including its rights under this Section and all such reasonable and documented out-of pocket expenses incurred during any workout, restructuring or negotiations in respect of the Guaranteed Obligations; provided that the Loans Parties shall only be required to pay the reasonable and documented out-of-pocket legal expenses of a single counsel for the Secured Parties and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all such persons (and, in the case of a conflict of interest where the person or persons affected by such conflict informs LMI of such conflict, one additional single counsel for all similarly situated persons). The Administrative Agent agrees to distribute payments received from any of the Guarantors hereunder to the other Secured Parties on a pro rata basis for application in accordance with the terms of the Credit Agreement.
SECTION 19. Setoff . At any time after all or any part of the Guaranteed Obligations have become due and payable (by acceleration or otherwise), each Secured Party and any of its Affiliates may, without notice to any Guarantor and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply in accordance with the terms of the Credit Agreement or the applicable Swap Agreement or Banking Services Agreement toward the payment of all or any part of the Guaranteed Obligations (i) any indebtedness due or to become due from such Secured Party or the Administrative Agent to any Guarantor, and (ii) any moneys, credits or other property belonging to any Guarantor, at any time held by or coming into the possession of such Secured Party or any of its Affiliates.
SECTION 20. Financial Information . Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of each of the Borrower, each of the other Guarantors, and any and all endorsers and/or other guarantors of all or any part of the Guaranteed Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees that none of the Secured Parties shall have any duty to advise such Guarantor of information known to any of them regarding such condition or any such circumstances. In the event any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to a Guarantor, such Secured Party shall be under no obligation (i) to undertake any investigation not a part of its regular business routine, (ii) to disclose any information which such Secured Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (iii) to make any other or future disclosures of such information or any other information to such Guarantor.
SECTION 21. Severability . Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any
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provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.
SECTION 22. Merger . This Guaranty represents the final agreement of each of the Guarantors with respect to the matters contained herein and may not be contradicted by evidence of prior or contemporaneous agreements, or subsequent oral agreements, between the Guarantor and any Secured Party.
SECTION 23. Headings . Section headings in this Guaranty are for convenience of reference only and shall not govern the interpretation of any provision of this Guaranty.
SECTION 24. Judgment Currency . If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due from any Guarantor hereunder in the currency expressed to be payable herein (the specified currency ) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such other currency at the Administrative Agents main New York City office on the Business Day preceding that on which final, non-appealable judgment is given. The obligations of each Guarantor in respect of any sum due hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by any Secured Party of any sum adjudged to be so due in such other currency such Secured Party may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Secured Party in the specified currency, each Guarantor agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Secured Party against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Secured Party in the specified currency and (b) amounts shared with other Secured Parties as a result of allocations of such excess as a disproportionate payment to such other Secured Party under Section 2.18 of the Credit Agreement, such Secured Party agrees, by accepting the benefits hereof, to remit such excess to such Guarantor.
SECTION 25. [Reserved]
SECTION 26. Swap Providers and Banking Services Providers . No Swap Provider or Banking Services Provider that obtains the benefits of this Guaranty by virtue of the provisions of this Guaranty or any other Loan Document shall have any right to notice of any action or to consent to, direct or object to any action under this Guaranty or under any other Loan Document or otherwise 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 Guaranty 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, Secured Swap Obligations and Secured Banking Services Obligations unless the Administrative Agent has received written notice of such Guaranteed Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Swap Providers and Banking Services Providers. Each Swap Provider and Banking Services Provider that is not a party to this Guaranty shall, by accepting the benefits of this Guaranty, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VIII of the Credit Agreement for itself and its Affiliates as if a Lender party thereto.
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SECTION 27. Keepwell . Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Guarantor to honor all of its obligations under this Guaranty in respect of Secured Swap Obligations; provided , that each Qualified ECP Guarantor shall only be liable under this Section 27 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 27 or otherwise under this Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount. The obligations and undertakings of each Qualified ECP Guarantor under this Section 27 shall remain in full force and effect until the Guaranteed Obligations have been Paid in Full. Each Qualified ECP Guarantor intends that this Section 27 constitute, and this Section 27 shall be deemed to constitute, a keepwell, support or other agreement for the benefit of each other Guarantor for all purposes of the Commodity Exchange Act.
[Signature Pages Follow]
Exhibit D-2 Page 14
IN WITNESS WHEREOF, each of the Initial Guarantors has caused this Guaranty to be duly executed by its authorized officer as of the day and year first above written.
[NAME OF INITIAL GUARANTOR] | ||
By: |
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Name: | ||
Title: |
Exhibit D-2 Page 15
Acknowledged and Agreed as of the date first above written: |
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JPMORGAN CHASE BANK, N.A., as Administrative Agent |
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By: |
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Name: | ||
Title: |
Exhibit D-2 Page 16
ANNEX I TO
SUBSIDIARY GUARANTEE AGREEMENT
FOR FOREIGN SUBSIDIARIES
Reference is hereby made to the [Amended and Restated] Guarantee Agreement (the Guaranty ) made as of [ ], 20[ ], by and among [NAMES OF INITIAL GUARANTORS] (collectively, the Initial Guarantors , and along with any additional Foreign Subsidiaries which become parties thereto and together with the undersigned, the Guarantors ), in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, under the Credit Agreement. Capitalized terms used herein and not defined herein shall have the meanings given to them in the Guaranty. By its execution below, the undersigned [NAME OF NEW GUARANTOR], a [country of incorporation/organization] [corporation] [partnership] [limited liability company], agrees to become, and does hereby become, a Guarantor under the Guaranty and agrees to be bound by such Guaranty as if originally a party thereto. By its execution below, the undersigned represents and warrants as to itself that all of the representations and warranties contained in Section 2 of the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR] has executed and delivered this Annex I counterpart to the Guaranty as of this day of , 20 .
[NAME OF NEW GUARANTOR] | ||
By: |
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Its: |
Exhibit D-2 Page 17
EXHIBIT E
FORM OF INCREASING LENDER AGREEMENT
INCREASING LENDER AGREEMENT, dated , 20 (this Agreement ), by and among each of the signatories hereto, to the Amended and Restated Credit Agreement, dated as of February 1, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ), among LogMeIn, Inc., a Delaware corporation ( LMI ), the additional borrowers from time to time parties thereto (together with LMI, each a Borrower and collectively, the Borrowers ), the Lenders parties thereto and JPMorgan Chase Bank, N.A., as administrative agent (the Administrative Agent ) for itself and the other Lenders. Capitalized terms used herein and not defined herein shall have the meanings defined in the Credit Agreement.
W I T N E S S E T H
WHEREAS, pursuant to Section 2.21 of the Credit Agreement, LMI has the right, subject to the terms and conditions thereof, to effectuate from time to time an increase in the Revolving Commitments and/or one or more Incremental Term Loans under the Credit Agreement by requesting one or more Lenders to increase the amount of its Revolving Commitment and/or to participate in an Incremental Term Loan;
WHEREAS, LMI has given notice to the Administrative Agent of its intention to [increase the Revolving Commitments] [and] [enter into one or more Incremental Term Loans] pursuant to Section 2.21 ; and
WHEREAS, pursuant to Section 2.21 , the undersigned Increasing Lender now desires to [increase the amount of its Revolving Commitment] [and] [participate in an Incremental Term Loan] under the Credit Agreement by executing and delivering to LMI and the Administrative Agent this Agreement;
NOW, THEREFORE, each of the parties hereto hereby agrees as follows:
1. | The undersigned Increasing Lender agrees, subject to the terms and conditions of the Credit Agreement, that on the date of this Agreement it shall [have its Revolving Commitment increased by $ , thereby making the aggregate amount of its Revolving Commitment equal to $ ] [and] [participate in an Incremental Term Loan with a commitment amount equal to $ with respect thereto]. |
2. | LMI hereby represents and warrants that on the proposed date of the effectiveness of the increase in the Revolving Commitments and/or the Incremental Term Loan contemplated hereby, (A) the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement are and shall be satisfied both before and immediately after giving effect to such increase in the Revolving Commitments and/or Incremental Term Loan and (B) the Borrowers are and shall be in pro forma compliance with each financial covenant set forth in Section 6.10 of the Credit Agreement as determined in the manner required by Section 2.21 of the Credit Agreement. |
Exhibit E Page 1
3. | This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. |
4. | This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same document. |
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be executed and delivered by a duly authorized officer on the date first above written.
[INSERT NAME OF INCREASING LENDER] | ||
By: |
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Name: | ||
Title: |
Accepted and agreed to as of the date first written above:
LOGMEIN, INC. | ||
By: |
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Name: | ||
Title: | ||
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent |
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By: |
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Name: | ||
Title: |
Exhibit E Page 2
EXHIBIT F
FORM OF AUGMENTING LENDER AGREEMENT
Dated as of [ ], 20[ ]
Reference is made to the Amended and Restated Credit Agreement, dated as of February 1, 2017 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement ), among LogMeIn, Inc., a Delaware corporation ( LMI ), each of the Additional Borrowers party thereto (together with LMI, each a Borrower and collectively, the Borrowers ), the Lenders parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.
W I T N E S S E T H
WHEREAS, [ ], a [ ] (the Additional Lender ), was not an original party to the Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, each of the parties hereto hereby agrees as follows:
1. Commitment to Lend .
(a) The Additional Lender agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, as of the Additional Lender Effective Date (as defined below), become a Lender for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a [Revolving Commitment of $ ] [and] [a commitment with respect to Incremental Term Loans of $ ]. The Additional Lenders [Revolving Commitment] [commitment with respect to Incremental Term Loans] expressed as a percentage of all [Revolving Commitments] [commitments with respect to Incremental Term Loans] of all Lenders as of the date hereof is [ ]%.
(b) LMI hereby represents and warrants that as of the Additional Lender Effective Date, (i) the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement are and shall be satisfied both before and immediately after giving effect to the Additional Lender becoming a Lender for all purposes of the Credit Agreement and (ii) the Borrowers are and shall be in pro forma compliance with each financial covenant set forth in Section 6.10 of the Credit Agreement as determined in the manner required by Section 2.21 of the Credit Agreement.
2. Additional Lenders Representations . The Additional Lender hereby represents and warrants to, and agrees with, the other parties to the Credit Agreement as follows:
(a) The Additional Lender has received a copy of the Credit Agreement, together with copies of the most recent financial statements referred to in Section 5.01 .
(b) The extensions of credit made under the Credit Agreement are commercial loans and letters of credit and not investments in a business enterprise or securities. The Additional
Exhibit F Page 1
Lender is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Augmenting Lender Agreement as a Lender, and to make, acquire or hold Loans under the Credit Agreement.
(c) The Additional Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning LMI and its Affiliates) 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 the Credit Agreement, any related agreement or any document furnished thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations under the Credit Agreement.
(d) The Additional Lender hereby irrevocably appoints the Administrative Agent as its agent 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 of the Credit Agreement, together with such actions and powers as are reasonably incidental thereto.
(e) The Additional Lender agrees that it will perform all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender.
(f) The Additional Lender is legally authorized to enter into this Augmenting Lender Agreement.
3. Additional Lender Effective Date . The effective date for this Augmenting Lender Agreement shall be [ ], 20[ ] (the Additional Lender Effective Date ). Following the execution of this Augmenting Lender Agreement by the Additional Lender, the consent of the Administrative Agent, LMI and each Issuing Bank having been obtained (as applicable), and the other requirements set forth in Section 2.21(b) of the Credit Agreement having been satisfied, the Administrative Agent shall record in the Register the Additional Lenders Commitment. Schedule 2.01 to the Credit Agreement shall thereupon be replaced as of the Additional Lender Effective Date by the Schedule 1 annexed hereto.
4. Rights Under Credit Agreement . Upon such acceptance and recording, from and after the Additional Lender Effective Date, the Additional Lender shall be a party to the Credit Agreement and, to the extent provided in this Augmenting Lender Agreement, have the rights and obligations of a Lender thereunder.
5. Governing Law . THIS AUGMENTING LENDER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6. Counterparts; Electronic Execution . The provisions of Section 9.06 of the Credit Agreement as to counterparts and electronic execution are hereby incorporated into this Augmenting Lender Agreement by reference, mutatis mutandis , as if such provisions were fully set forth herein.
Exhibit F Page 2
[Signature Page Follows]
Exhibit F Page 3
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned has caused this Augmenting Lender Agreement to be executed on its behalf by its officer thereunto duly authorized, as of the date first above written.
[NAME OF ADDITIONAL LENDER] | ||
By: |
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Name: | ||
Title: |
CONSENTED TO : | ||
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent |
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By: |
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Name: | ||
Title: | ||
LOGMEIN, INC., as Administrative Borrower |
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By: |
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Name: | ||
Title: | ||
[NAME OF RELEVANT PARTY] 7 | ||
By: |
|
|
Name: | ||
Title: |
7 | Consent of each Issuing Bank required, except in the case of an Incremental Term Loan |
Exhibit F Page 4
Exhibit 99.1
LogMeIn Completes Merger with Citrixs GoTo Business
BOSTON, February 1, 2017 LogMeIn, Inc. (NASDAQ:LOGM) announced the completion of its previously disclosed merger with Citrix Systems, Inc.s (NASDAQ:CTXS) GetGo, Inc. subsidiary, a wholly owned subsidiary consisting of Citrixs GoTo family of service offerings. The merger officially closed after market hours on January 31, 2017. Effected through a Reverse Morris Trust transaction, the merger brings together two of the preeminent players in cloud connectivity to instantly create one of the worlds top 10 public SaaS companies 1 , and a market leader with the scale, resources and world-class talent required to accelerate innovation and significantly expand its total addressable market opportunity.
Between LogMeIn and GoTo we have two of the best known, most trusted and reliable product portfolios in cloud connectivity, and both companies have been remarkable success stories, said Bill Wagner, president and CEO of LogMeIn. Today we start an exciting new chapter together as a clear leader that has the scale, innovation and vision to reset customer, employee and shareholder expectations, while redefining our core markets.
Fourth quarter and fiscal year 2016 call; Combined outlook for 2017
As previously announced, LogMeIn will report its fourth quarter and fiscal year 2016 financial results for the period ended December 31, 2016 following the close of market on Tuesday, February 28, 2017. On that day, management will hold a conference call and webcast at 5:00 p.m. ET to review and discuss the Companys results for the fourth quarter and fiscal year. During this call, the Company expects to also provide preliminary guidance for the first quarter and full fiscal year of 2017.
Information on the conference call can be found via a previous press release , as well as on LogMeIns investor relations site .
Previous information and details regarding the merger
Information on the merger can be found on LogMeIns corporate website , as well as in a special merger section of its investor relations site .
About LogMeIn
LogMeIn, Inc. (NASDAQ:LOGM) simplifies how people connect with each other and the world around them to drive meaningful interactions, deepen relationships, and create better outcomes for individuals and businesses. One of the worlds top 10 public SaaS companies, and a market leader in communication & conferencing, identity & access, and customer engagement & support solutions, LogMeIn has millions of customers spanning virtually every country across the globe. LogMeIn is headquartered in Boston with additional locations in North America, Europe, Asia and Australia.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, including but not limited to,
1 |
Based on 2016 proforma revenue and in comparison to the annual revenue of other publicly traded SaaS companies |
statements regarding the LogMeIns position as a market leader, acceleration of innovation and expansion of total addressable market opportunity. These forward-looking statements are made as of the date they were first issued and were based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions of management. Words such as expect, anticipate, should, believe, hope, target, project, goals, estimate, potential, predict, may, will, might, could, intend, variations of these terms or the negative of these terms and similar expressions are intended to identify these forward-looking statements. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond the LogMeIns control. LogMeIns actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including but not limited to (1) failure to realize the estimated synergies or growth anticipated as a result of the transactions or that such benefits may take longer to realize than expected, (2) risks related to unanticipated costs of integration of GetGo by LogMeIn, (3) the effect of the consummation of the transactions on the ability of LogMeIn to retain and hire key personnel and maintain relationships with key business partners and customers, and on LogMeIns operating results and businesses generally, (4) adverse trends in economic conditions generally or in the industries in which the LogMeIn operates, (5) adverse changes to, or interruptions in, relationships with third parties unrelated to the merger, (6) LogMeIns ability to compete effectively and successfully and to add new products and services, (7) LogMeIns ability to successfully manage and integrate acquisitions, (8) the ability to attract new customers and retain existing customers in the manner anticipated, (9) unanticipated changes relating to competitive factors in the LogMeIns industries, and (10) any business interruptions in connection with the LogMeIns technology systems. Discussions of additional risks and uncertainties are contained in LogMeIns filings with the U.S. Securities and Exchange Commission (the SEC). LogMeIn is under no obligation, and expressly disclaims any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this announcement are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof.
Contacts:
Investors
Rob Bradley
781-897-1301
rbradley@LogMeIn.com
Press
Craig VerColen
781-897-0696
Press@LogMeIn.com
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