Exhibit 10.7.3
Execution Version
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Third Amendment to Revolving Credit Agreement (this “Amendment”), is made as of March 28, 2025, by and among CIM GROUP MANAGEMENT, LLC, a Delaware limited liability company (“Borrower”), each Lender party hereto, and CITY NATIONAL BANK, as administrative agent for the Lenders (in such capacity, the “Agent”) and as the Swing Line Lender.
Factual Background
A. Pursuant to that certain Revolving Credit Agreement, dated as of December 30, 2022 (as amended by that certain First Amendment to Revolving Credit Agreement, dated as of January 24, 2023, that certain Second Amendment to Revolving Credit Agreement, dated as of January 27, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time through the date hereof, the “Credit Agreement”), by and among Borrower, the financial institutions from time to time party thereto as lenders (collectively, the “Lenders”) and the Agent, the Lenders agreed to provide an unsecured revolving credit facility (the “Facility”) available to Borrower. Capitalized terms used herein without definition have the meanings ascribed to them in the Credit Agreement.
B. Borrower has requested that (a) the Revolving Credit Aggregate Commitment be increased by $75,000,000.00 (the “Revolving Credit Commitment Increase”), to a total of
$250,000,000.00, and (b) certain modifications be made to the Credit Agreement as forth herein.
C. Each Revolving Credit Lender under the Credit Agreement is willing to provide a portion of the Revolving Credit Commitment Increase in the principal amount set forth opposite such Lender’s name on Schedule I hereto, and the Agent, the Swing Line Lender and each Revolving Credit Lender are willing to make such other modifications to the Credit Agreement, on the terms and subject to the conditions more particularly set forth herein.
Agreement
Therefore, Borrower, the Agent and the Lenders agree as follows:
1. Recitals. The recitals set forth above in the Factual Background are true, accurate and correct.
2. Revolving Credit Commitment Increase.
(a) Revolving Credit Commitment Increase. Each Revolving Credit Lender hereby agrees (x) to provide a portion of the Revolving Credit Commitment Increase in the principal amount set forth opposite such Lender’s name on Schedule I hereto and (y) to make Advances of the Revolving Credit in Dollars to Borrower from time to time on any Business Day during the period from the Third Amendment Effective Date until (but excluding) the Maturity Date (as extended hereby) in an aggregate amount not to exceed at any one time outstanding such Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (as increased hereby).
1
(i) Representations and Warranties by Each Revolving Credit Lender. Each Revolving Credit Lender hereby confirms that it has received a copy of the Credit Agreement and the exhibits and schedules referred to therein, and all other Loan Documents which it considers necessary, together with copies of the other documents which were required to be delivered under the Credit Agreement as a condition to the making of loans thereunder. Each Revolving Credit Lender acknowledges and agrees that it: (a) has made and will continue to make such inquiries and has taken and will take such care on its own behalf as would have been the case had its Percentage been granted and its loans been made directly by each Revolving Credit Lender to Borrower without the intervention of the Agent or any other Lender; and (b) has made and will continue to make, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it has deemed appropriate, its own credit analysis and decisions relating to the Credit Agreement. Each Revolving Credit Lender further acknowledges and agrees that neither the Agent nor any other Lender has made any representations or warranties about the creditworthiness of Borrower or any other party to the Credit Agreement or any other of the Loan Documents, or with respect to the legality, validity, sufficiency or enforceability of the Credit Agreement or any other of the Loan Documents.
(b) Acknowledgment of the Revolving Credit Commitment Increase. Each of the undersigned hereby (i) acknowledges and agrees that the Revolving Credit Commitment Increase provided by each Revolving Credit Lender pursuant to this Amendment is one of the Revolving Credit Commitments contemplated by the Credit Agreement and that, following the Third Amendment Effective Date and the consummation of the transactions contemplated hereby, the amount of the “Revolving Credit Aggregate Commitment” shall be $250,000,000.00, subject to reduction or termination under Section 2.10 of the Credit Agreement and (ii) acknowledges and agrees that (A) Borrower has directed Agent to offer a portion of the Revolving Credit Commitment Increase to each Revolving Credit Lender and (B) each Revolving Credit Lender has agreed to provide a portion of the Revolving Credit Commitment Increase, in each case, in the principal amount set forth opposite such Lender’s name on Schedule I hereto.
3. Modifications to Credit Agreement.
(a) Amendment to Credit Agreement. The Credit Agreement (but not the Exhibits, Annexes and Schedules thereto, other than as set forth in clause (b) below) is hereby amended by deleting the stricken text (indicated textually in the same manner as the following example: stricken text) and adding the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Exhibit A hereto.
(b) Annex III. Annex III of the Credit Agreement is hereby amended and restated in its entirety as set forth in Exhibit B attached hereto.
(c) Definition of Credit Agreement. Except as provided in this Amendment, all references in the Credit Agreement and in the other Loan Documents to the Credit Agreement shall mean the Credit Agreement as amended by this Amendment (the Credit Agreement, as amended hereby, the “Amended Credit Agreement”).
(d) No Other Modifications. Except as expressly set forth in this Amendment, the Credit Agreement and the other Loan Documents shall be and remain unmodified and in full force and effect.
4. Conditions Precedent. This Amendment shall become effective on and as of the first date on which all of the following conditions shall have been satisfied (or waived by the
Agent and the Lenders in their sole discretion, as evidenced by the release of their respective signature pages hereto):
(a) The Agent shall have received counterparts of this Amendment (including the Consent of Guarantors attached hereto) duly executed by each party hereto.
(b) The Agent shall have received (A) customary legal opinions addressed to the Lenders, board resolutions and officers’ certificates consistent with those delivered on the Closing Date and (B) such other documents as may be reasonably requested by the Agent.
(c) No Default or Event of Default exists or will exist on the Third Amendment Effective Date immediately before and immediately after giving effect to effectiveness of this Amendment and the transactions contemplated hereby, including provision of the Revolving Credit Commitment Increase.
(d) Each of the representations and warranties made by the Loan Parties in the Amended Credit Agreement and in each of the other Loan Documents shall be true and correct in all material respects as of the Third Amendment Effective Date as if made on and as of such date (other than any representation or warranty that expressly speaks as of a different date, in which case such representation and warranty shall be true and correct in all material respects as of such different date); provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects.
(e) Since the Closing Date, nothing has occurred which has had, or could reasonably be expected to have, a Material Adverse Effect .
(f) Borrower shall have paid all fees that are due and payable to the Lead Arrangers and the Revolving Credit Lenders pursuant to the Fee Letter (as defined in the Amended Credit Agreement).
(g) The Agent shall have received reimbursement, in immediately available funds, of all actual, out-of-pocket costs and expenses incurred by the Agent and for which an invoice has been submitted in connection with this Amendment, including the legal fees, charges and expenses of the Agent’s counsel.
Except as set forth in any closing condition letter between Borrower and the Agent, by releasing its signature page to this Amendment the Agent and each Lender shall be deemed to have consented to, approved or accepted as satisfactory each document or other matter required by this Section 4 to be consented to, approved or accepted as satisfactory by the Agent or such Lender, as the case may be.
5. Representations and Warranties. Each of Borrower and, by its execution of the
Consent of Guarantor attached hereto, each of the other Loan Parties, represents and warrants that each of the representations and warranties made by the Loan Parties in the Amended Credit Agreement and in each of the other Loan Documents is true and correct in all material respects as of the Third Amendment Effective Date as if made on and as of such date (other than any representation or warranty that expressly speaks as of a different date, in which case such representation and warranty is true and correct in all material respects as of such different date); provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects.
6. Reimbursement of Expenses. Without duplication of any amounts paid pursuant to Section 4(g) of this Amendment, Borrower shall pay or reimburse the Agent for all actual, out-of-pocket costs and expenses incurred by the Agent in connection with this Amendment, including the legal fees, charges and expenses of the Agent’s counsel in accordance with Section 11.5 of the Credit Agreement.
7. Integration. The Loan Documents, including this Amendment: (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to their subject matter; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in those documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions and provisions of this Amendment and those of any other agreement or instrument in effect as of the date of this Amendment, including any of the other Loan Documents, the terms, conditions and provisions of this Amendment shall prevail.
8. Severability. In case any provision in or obligation hereunder or under any other Loan Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
9. Designation as Loan Document. This Amendment shall constitute a Commitment Increase Amendment and a Loan Document under the Amended Credit Agreement.
10. Miscellaneous. This Amendment and any attached consents or exhibits requiring signatures may be executed in counterparts, and all counterparts shall constitute but one and the same document. If any court of competent jurisdiction determines any provision of this Amendment or any of the other Loan Documents to be invalid, illegal or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable portion had never been a part of the Loan Documents. This Amendment shall be governed by the laws of the State of New York, without regard to the choice of law rules of that State that would require application of the laws of any other jurisdiction. As used here, the word “include(s)” means “includes(s), without limitation,” and the word “including” means “including, but not limited to.”
[Signatures on following page]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth above.
Borrower:
CIM GROUP MANAGEMENT, LLC,
a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CITY NATIONAL BANK,
as Agent, a Lender and the Swing Line Lender
By: /s/ Stephanie Leimbach
Name: Stephanie Leimbach
Title: Vice President
TRUIST BANK,
as a Revolving Credit Lender
By:
Name:
Title:
COMERICA BANK,
as a Revolving Credit Lender
By:
Name:
Title:
Revolving Credit Lenders:
CITY NATIONAL BANK,
as a Revolving Credit Lender
By: Name:
Title:
TRUIST BANK,
as a Revolving Credit Lender
Name: David Fournier Title: Managing Director
COMERICA BANK,
as a Revolving Credit Lender
By: Name:
Title:
Revolving Credit Lenders:
CITY NATIONAL BANK,
as a Revolving Credit Lender
By: Name:
Title:
TRUIST BANK,
as a Revolving Credit Lender
By: Name:
Title:
COMERICA BANK,
as a Revolving Credit Lender
By: /s/ Randall Mitchell
Name: Randall Mitchell
Title: Vice President
CONSENT OF GUARANTORS
The undersigned, having read and understood the foregoing Third Amendment to Revolving Credit Agreement (the “Third Amendment”), each hereby (i) consents to all of the terms, conditions and provisions of the Third Amendment and the transactions contemplated by the Third Amendment, (ii) agrees that the Third Amendment does not terminate any of the obligations of the undersigned to Agent under (A) that certain Guaranty Agreement, dated as of December 30, 2022, executed by the undersigned in favor of Agent (the “Guaranty”), (iii) reaffirms its obligations under the Guaranty Agreement in light of the Third Amendment, and (iv) agrees that its obligations under the Guaranty Agreement are separate and distinct from those of Borrower with respect to the Facility. Each of the undersigned, having reread the Guaranty Agreement, and with the advice of its own counsel, hereby reaffirms and restates all waivers, authorizations, agreements and understandings set forth in the Guaranty Agreement, as though set forth in full herein. Capitalized terms used in this consent but not otherwise defined shall have the meanings ascribed to such terms in the Third Amendment.
Dated as of March 28, 2025.
Signatures begin on following page]
CONSENT OF GUARANTORS
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth above.
Borrower:
CIM GROUP MANAGEMENT, LLC,
a Delaware limited liability company
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
IN WITNESS WHEREOF, each of the undersigned Guarantors has executed this Consent of Guarantors as of the date above written.
CIM Capital, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CCO Group, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Group, L.P.,
a Delaware limited partnership
By: CIM Management, Inc. a California corporation,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM SMA I Sponsor, LLC.,
a California limited liability company
By: CIM SMA I MLP, LLC,
A Delaware limited liability its managing member company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member company,
CIM Atlanta Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Service Provider, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Capital SA Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Urban Income Investments GP, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
S-9th Avenue Co-Investor Manager, LLC,
a Delaware limited liability company
By: S-MWC Co-Investor Manager, LLC,
a Delaware limited liability company, its sole member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Capital Controlled Company Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Capital RE Debt Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
CIM Capital Securities Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Capital Real Property Management, LLC
a Delaware limited liability company
By: CIM Capital, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Capital IC Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Lending Services, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
L-55 Hawthorne Co-Investor Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
H-55 Hawthorne REIT Manager, LLC, a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Controlled Company Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM RE Debt Management, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM EPIC II QOF SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
CIM Management, Inc.,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
H-Turtle Creek Village Co-Investor Manager, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CMMT SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Infrastructure SLP, LLC,
a California limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Infrastructure II SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Infrastructure III SLP, LLC,
a Delaware limited liability company
By: CIM Infrastructure III SLP Holdings, L.P. a Delaware limited liability company,
its sole equity member
By: CIM Fund SLP GP, LLC,
A Delaware limited liability company, its general partner
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Fund IX SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Opportunity Zone Fund SLP, LLC,
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Real Estate Finance Management, LLC,
a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CREI Advisors, LLC,
an Arizona limited liability company
By: /s/ Christina Mayo
Name: Christina Mayo
Title: Manager
CIM Real Estate Finance Management, LLC, a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company, its managing member
By:
Name: David Thompson
Its: Chief Financial Officer
CREI Advisors, LLC,
an Arizona limited liability company
By: /s/ Christina Mayo
Name: Christina Mayo
Title: Manager
CIM Income NAV Management, LLC,
a Delaware limited liability company
By: CCO Group, LLC,
a Delaware limited liability company, its sole equity member
By: CIM Group Management, LLC, a Delaware limited liability company,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM SBA Staffing, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California Corporation
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
246 Spring Street (NY) Manager, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
432 Park Management, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation, its general partner
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Group Hotel, LLC,
a California limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Real Estate Services, LLC,
a Delaware limited liability company
By: /s/ Sara Martens
Name: Sara L. Martens
Title: Manager
CIM Group Hotel, LLC,
a California limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
its general partner
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM Real Estate Services, LLC,
a Delaware limited liability company
By: /s/ Sara Martens
Name: Sara L. Martens
Title: Manager
CIM NY Management, LLC,
a New York limited liability company
By: CIM Group, L.P,
a Delaware limited partnership, its sole equity member
By: CIM Management, Inc., a California corporation,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM TX Management, LLC,
a Delaware limited liability company
By: CIM Group, L.P.,
a Delaware limited partnership, its managing member
By: CIM Management, Inc., a California corporation,
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM SMA-Y MANAGER, LLC
a Delaware limited liability company
By: CIM Group, L.P., a California limited Partnership, its sole equity member
By: CIM Management, Inc., a California Corporate general partner
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM URBAN INCOME INVESTMENTS SLP, LLC
a Delaware limited liability company
By: CIM Group Management, LLC, a Delaware limited liability company, its sole equity member
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
CIM VA Management, LLC
a Delaware limited liability company
By: CIM Group, L.P., a California limited Partnership, its sole equity member
By: CIM Management, Inc., a California Company general partner
By: /s/ David Thompson
Name: David Thompson
Its: Chief Financial Officer
Schedule I
Revolving Credit Commitment Increase
| | | | | |
Lenders | Revolving Credit Commitment Increase |
City National Bank | $32,500,000.00 |
Truist Bank | $32,500,000.00 |
Comerica Bank | $10,000,000.00 |
| TOTALS | $75,000,000.00 |
Exhibit A
[See attached]
Exhibit A to SecondThird Amendment
CONFIDENTIAL
REVOLVING CREDIT AGREEMENT
among
CIM GROUP MANAGEMENT, LLC,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
CITY NATIONAL BANK,
as Agent
CITY NATIONAL BANK
and
TRUIST SECURITIES, INC.,
as Lead Arrangers and
TRUIST BANK,
as Syndication Agent
Dated as of December 30, 2022,
as amended by the First Amendment to Revolving Credit Agreement dated as of January 24, 2023 and ,
as amended by the Second Amendment to Revolving Credit Agreement dated as of January 27, 2023
and as amended by the Third Amendment to Revolving Credit Agreement dated as of March 28, 2025
TABLE OF CONTENTS
Page
1. DEFINITIONS 1
1.1 Certain Defined Terms 1
1.2 Interpretive Provisions 30
1.3 Accounting Terms; Divisions 31
1.4 Rates 32
1.5 Pro Forma Calculations 32
2. REVOLVING CREDIT 33
2.1 Commitment 33
2.2 Accrual of Interest and Maturity; Evidence of Obligations 33
2.3 Requests for and Refundings and Conversions of Advances 34
2.4 Disbursement of Advances 35
2.5 Swing Line 36
2.6 Interest Payments; Default Interest 40
2.7 Optional Prepayments 41
2.8 Base Rate Advance in Absence of Election or Upon Default 41
2.9 Revolving Credit Facility Fee 41
2.10 Mandatory Repayment of Revolving Credit Advances 41
2.11 [Reserved] 43
2.12 Extension of Maturity Date 43
2.13 Commitment Increase 43
3. YIELD PROTECTION; INCREASED COSTS; MARGIN ADJUSTMENTS; TAXES 45
3.1 Reimbursement of Prepayment Costs 45
3.2 Suspension of Term SOFR Advances 45
3.3 [Reserved] 46
3.4 [Reserved] 46
3.5 Increased Costs 46
3.6 Capital Adequacy and Other Increased Costs 47
3.7 Right of Lenders to Fund through Branches and Affiliates 47
3.8 Margin Adjustment 47
3.9 Delay in Requests 48
3.10 Taxes 48
3.11 Benchmark Replacement Setting 50
4. CONDITIONS 52
4.1 Conditions of Initial Advances 52
4.2 Continuing Conditions 54
5. REPRESENTATIONS AND WARRANTIES 55
5.1 Organization; Power and Authority 55
5.2 Authorization, Etc 55
5.3 Disclosure 55
5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates 56
5.5 Financial Statements; Material Liabilities 56
5.6 Compliance with Laws, Other Instruments, Etc 57
5.7 Governmental Authorizations, Etc 57
5.8 Litigation; Observation of Statues and Orders 57
5.9 Taxes 57
5.10 Title to Property; Leases 58
5.11 Licenses, Permits, Etc 58
5.12 Compliance with Employee Benefit Plans 58
5.13 [Reserved] 59
5.14 Use of Proceeds; Margin Regulations 59
5.15 Existing Indebtedness 59
5.16 Foreign Assets Control Regulations, Etc 60
5.17 Status under Certain Statutes 60
5.18 Solvency 61
5.19 EEA Financial Institution 61
5.20 Beneficial Ownership Certification 61
6. AFFIRMATIVE COVENANTS 61
6.1 Financial and Business Information 61
6.2 Officer’s Certificate 64
6.3 Inspection of Property; Books and Records, Discussions 65
6.4 Compliance with Laws 65
6.5 Insurance 65
6.6 Maintenance of Properties 65
6.7 Payment of Taxes 66
6.8 Existence, Etc 66
6.9 Books and Records 66
6.10 Subsidiary Guarantors 66
6.11 Eligible Revenues 67
6.12 Registered Investment Adviser 68
6.13 Private Debt Rating 68
6.14 Most Favored Lender 68
6.15 Use of Proceeds 70
7. NEGATIVE COVENANTS 70
7.1 Transactions with Affiliates 70
7.2 Mergers, Consolidation, Etc 70
7.3 Line of Business 71
7.4 Economic Sanctions, Etc 72
7.5 Liens 72
7.6 Indebtedness 74
7.7 Restricted Payments 75
7.8 Financial Covenants 76
7.9 Amendments to Eligible Revenue Agreements 77
7.10 Sale of Assets 77
7.11 Modification of Certain Agreements; Certain Payments 77
7.12 Fiscal Year 78
8. DEFAULTS 78
8.1 Events of Default 78
8.2 Acceleration 80
8.3 [Reserved] 81
8.4 Rights Cumulative 81
8.5 Waiver by Borrower of Certain Laws 81
8.6 Waiver of Defaults 81
8.7 Set Off 81
9. PAYMENTS, RECOVERIES AND COLLECTIONS 82
9.1 Payment Procedure 82
9.2 [Reserved] 82
9.3 Pro-rata Recovery 83
9.4 Treatment of a Defaulting Lender; Reallocation of Defaulting Lender’s Fronting Exposure 83
10. AGENT 84
10.1 Appointment of the Agent 84
10.2 Deposit Account with the Agent or any Lender 85
10.3 Scope of the Agent’s Duties 85
10.4 Successor Agent 85
10.5 Credit Decisions 86
10.6 Authority of the Agent to Enforce This Agreement 86
10.7 Indemnification of the Agent 86
10.8 Knowledge of Default 87
10.9 The Agent’s Authorization; Action by Lenders 87
10.10 Enforcement Actions by the Agent 88
10.11 [Reserved] 88
10.12 The Agents in their Individual Capacities 88
10.13 The Agent’s Fees 88
10.14 Documentation Agent or other Titles 88
10.15 Obligations in respect of Lender Products and Hedging Agreements 88
10.16 No Reliance on the Agent’s Customer Identification Program 89
10.17 Certain ERISA Matters 89
11. MISCELLANEOUS 90
11.1 [Reserved] 90
11.2 Consent to Jurisdiction 90
11.3 Governing Law 91
11.4 Interest 91
11.5 Closing Costs and Other Costs; Indemnification 91
11.6 Notices 93
11.7 [Reserved] 94
11.8 Successors and Assigns; Participations; Assignments 94
11.9 Counterparts 97
11.10 Amendment and Waiver 97
11.11 Confidentiality 100
11.12 Substitution or Removal of Lenders 101
11.13 Withholding Taxes 103
11.14 WAIVER OF JURY TRIAL 105
11.15 USA Patriot Act and Beneficial Ownership Notice 105
11.16 Complete Agreement; Conflicts 105
11.17 Severability 106
11.18 Table of Contents and Headings 106
11.19 Construction of Certain Provisions 106
11.20 Independence of Covenants 106
11.21 Electronic Transmissions 106
11.22 Reliance on and Survival of Provisions 107
11.23 Acknowledgment and Consent to Bail-In of Affected Financial Institutions 107
11.24 Acknowledgment Regarding Any Supported QFCs 108
EXHIBITS
A FORM OF REQUEST FOR REVOLVING CREDIT ADVANCE
B FORM OF REQUEST FOR SWING LINE ADVANCE
C FORM OF REVOLVING CREDIT NOTE
D FORM OF SWING LINE NOTE
E FORM OF SWING LINE PARTICIPATION CERTIFICATE
F [RESERVED]
G FORM OF SUBSIDIARY GUARANTY
H [RESERVED]
I FORM OF COMPLIANCE CERTIFICATE
J FORM OF ASSIGNMENT AGREEMENT
K FORMS OF U.S. TAX COMPLIANCE CERTIFICATE
L FORM OF QUALIFIED PURCHASER CERTIFICATE ANNEXES
I Applicable Margin Grid
II Original Subsidiary Guarantors
III Percentages and Allocations
IV Notices SCHEDULES
1.1 Disqualified Institutions
4.1(b) Jurisdictions in which Loan Parties are formed or organized
5.3 Disclosure Materials
5.4 Material Subsidiaries
5.5 Financial Statements
5.15 Existing Indebtedness
v
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement (this “Agreement”) is made as of December 30, 2022, by and among CIM GROUP MANAGEMENT, LLC, a Delaware limited liability company (“Borrower”), the financial institutions from time to time signatory hereto (individually a “Lender,” and any and all such financial institutions, collectively, the “Lenders”), CITY NATIONAL BANK, as the administrative agent for the Lenders (in such capacity, the “Agent”) and each of CITY NATIONAL BANK and TRUIST SECURITIES, INC., as joint lead arrangers and joint bookrunners (collectively in such capacities, the “Lead Arrangers” and each a “Lead Arranger”).
RECITALS
A. Borrower has requested that the Agent and the Lenders provide a senior unsecured revolving credit facility.
B. The Agent and the Lenders are prepared to make such senior unsecured revolving credit facility available to Borrower on the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the covenants contained herein, Borrower, the Lenders and the Agent agree as follows:
1. DEFINITIONS.
1.1 Certain Defined Terms. For purposes of this Agreement the following terms will have the following meanings:
“Acceptable Rating Agency” means Fitch, Moody’s, S&P, DBRS, or Kroll, so long as, in each case, any such credit rating agency continues to be a nationally recognized statistical rating organization recognized by the SEC and is approved as a “Credit Rating Provider” (or other similar designation) by the NAIC.
“Account” means any account or account receivable as defined under the UCC, including, with respect to any Person, any right of such Person to payment for goods sold or leased or for services rendered.
“Additional Funded Indebtedness” means, with respect to any Person at any time, without duplication, (a) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments and (b) all Guaranties with respect to Indebtedness of the type specified in the foregoing clause (a) of another Person; provided that, Additional Funded Indebtedness (and Additional Senior Indebtedness) shall not include (1) the Obligations hereunder, (2) intercompany indebtedness, (3) purchase money indebtedness (including assumed indebtedness), (4) Indebtedness arising under any hedging or netting arrangement, (5) operating leases and trade liabilities incurred in the ordinary course of business and payable in accordance with customary or past practices, (6) prepaid or deferred revenue arising in the ordinary course of business, (7) Indebtedness incurred for the purposes of financing warehoused investments, which, if secured, shall be secured solely by Liens assumed or incurred in reliance upon Sections
7.5(j) or (k) and (8) refinancing Indebtedness in respect of any of the foregoing Indebtedness solely to the extent such refinancing Indebtedness is of the type of Indebtedness described in the foregoing clauses (1) through (7).
“Additional Provision” has the meaning set forth in Section 6.14(a) hereof. “Additional Senior Indebtedness” has the meaning set forth in Section 7.6(a) hereof.
“Additional Senior Notes” has the meaning set forth in Section 7.6(a) hereof.
“Advance” means, as the context may indicate, a borrowing requested by Borrower and made by the Revolving Credit Lenders under Section 2.1 or by the Swing Line Lender under Section 2.5, including any re-advance, refunding or conversion of such borrowing pursuant to Section 2.3 or Section 2.5 and, subject to the terms hereof, may be a Base Rate Advance or a Term SOFR Advance.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
“Affected Lender” has the meaning set forth in Section 11.12 hereof.
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of Borrower.
“Agent” has the meaning set forth in the preamble hereof, and includes any successor agents appointed in accordance with Section 10.4 hereof.
“Agent’s Office” means the Agent’s address and, as appropriate, account, as set forth on Annex IV, or such other address or account as the Agent may from time to time notify Borrower and the Lenders.
“Agent-Related Persons” means, collectively, the Agent and its Affiliates and its and their respective employees, agents, officers, directors, attorneys-in-fact and other representatives; and “Agent Related Person” means any of the foregoing.
“Agreement” has the meaning set forth in the preamble hereof.
“Anti-Corruption Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.
“Anti-Money Laundering Laws” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.
“Applicable Fee Percentage” means, with respect to the Revolving Credit Facility Fee payable hereunder in respect of any calendar quarter, the applicable percentage per annum set forth below that corresponds to the average daily utilization of Revolving Credit Commitments for such calendar quarter (disregarding the amount of outstanding Swing Line Advances for such purpose):
| | | | | |
Utilization | Applicable Fee Percentage |
>35% | 0.20% |
<35% | 0.40% |
“Applicable Floor” means zero percent (0.0%) per annum.
“Applicable Interest Rate” means, (i) with respect to each Revolving Credit Advance, Term SOFR or the Base Rate, as applicable, plus, in each case, the Applicable Margin, and (ii) with respect to each Swing Line Advance, the Base Rate, plus the Applicable Margin.
“Applicable Margin” means, as of any date of determination thereof, the applicable interest rate margin, determined by reference to the appropriate row and column in the pricing matrix attached to this Agreement as Annex I, such Applicable Margin to be adjusted solely as specified in Section 3.8 hereof.
“Assignment Agreement” means an Assignment Agreement substantially in the form of Exhibit J.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, rule, regulation or requirement applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United States Code and the rules promulgated thereunder.
“Base Rate” means, for any day, the per annum rate of interest that is equal to the greater of (a) the Prime Rate for such day and (b) the Federal Funds Rate in effect on such day, plus one half percent (0.50%) per annum. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Rate, as applicable.
“Base Rate Term SOFR Determination Day” has the meaning specified in the definition of the term “Term SOFR”.
“Base Rate Advance” means an Advance that bears interest at the Base Rate. “Benchmark” has the meaning set forth in Section 3.11(b) hereof. “Benchmark Replacement” has the meaning set forth in Section 3.11(a) hereof.
“Benchmark Replacement Date” has the meaning set forth in Section 3.11(a) hereof. “Benchmark Transition Event” has the meaning set forth in Section 3.11(b) hereof.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation in a form as agreed to by the Agent.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230, as amended from time to time.
“Blocked Person” means (a) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by OFAC, (b) a Person, entity, organization, country or regime that is blocked or a target of Sanctions or (c) a Person that is an agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (a) or (b).
“Borrower” has the meaning set forth in the preamble hereof.
“Business Day” means any day other than a Saturday or a Sunday on which commercial banks in the State of New York are authorized or required by law to close; provided that, when used in connection with a Term SOFR Advance, or any other calculation or determination involving SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“CEA” has the meaning assigned to such term in the definition of “Excluded Swap Obligations”.
“Change in Law” means the occurrence, after the Closing Date, of any of the following:
(i) the adoption or implementation of, or any change in, any applicable law, treaty, rule or regulation (whether domestic or foreign) now or hereafter in effect and whether or not applicable to any Lender or the Agent on such date, (ii) any change in the interpretation, administration or implementation of any such law, treaty, rule or regulation by any Governmental Authority, or (iii) the issuance, making or implementation by any Governmental Authority of any regulation, interpretation, guideline, directive or request (whether or not having the force of law), including any risk-based capital guidelines. For purposes of this definition, (x) any change in law, treaty, rule, regulation, interpretation, administration or implementation made by, or which becomes effective on the basis of, a law, treaty, rule, regulation, interpretation administration or implementation then in force, the effective date of which change is delayed by the terms of such law, treaty, rule, regulation, interpretation, administration or implementation, (y) the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173) and all rules, regulations, interpretations, guidelines, directives or requests promulgated thereunder or issued in connection therewith shall be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued, promulgated or implemented, and (z) all rules, guidelines, directives or requests promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall each be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued, promulgated or implemented.
“Change of Control” means any of the following events:
(a) at any time prior to the creation of a Public Market, Permitted Investors shall cease to Control Borrower; or
(b) any time on or after the creation of a Public Market, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted Investor or any employee benefit plan or person acting in its capacity as trustee, agent or other fiduciary or administrator of such plan, shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of Exchange Act), directly or indirectly, of more than 50.0% of the outstanding voting Equity Interests of Borrower on a fully diluted basis.
“CIM Founding Principal” means any of Shaul Kuba, Richard Ressler or Avraham Shemesh.
“CIM Fund” means (a) any single-investor or commingled investment vehicle, fund, partnership, limited liability company or account that is sponsored, managed and/or serviced (or co-sponsored, co-managed and/or co-serviced), directly or indirectly, by a Loan Party or any of its Subsidiaries or (b) any entity that, upon a Loan Party’s or a Loan Party’s Subsidiary’s making an investment therein or acquiring management rights with respect thereto, would constitute an entity described in clause (a) of this definition.
“Closing Date” means the earliest date on which all the conditions precedent set forth in Sections 4.1 and 4.2 were satisfied, which was December 30, 2022.
“Code” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder from time to time.
“Commitment Increase” has the meaning set forth in Section 2.13 hereof. “Commitment Increase Amendment” has the meaning set forth in Section 2.13 hereof.
“Commitment Increase Effective Date” has the meaning set forth in Section 2.13 hereof.
“Compliance Certificate” means a certificate of a Senior Financial Officer of by Borrower delivered to the Agent pursuant to Section 6.2, substantially in the form attached hereto as Exhibit I.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) to this Agreement and the other Loan Documents that the Agent decides (in the case of any such changes made in connection with the use or administration of Term SOFR, in
consultation with Borrower) may be appropriate to reflect the adoption and implementation of any such rate and to permit the administration thereof by Agent in a manner substantially consistent with market practice that Agent determines (in the case of any such changes made in connection with the use or administration of Term SOFR, in consultation with Borrower) in connection with the administration of this Agreement and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such changes will become effective without any further action or consent of Borrower.
“Consolidated” (or “consolidated”) means, when used with reference to any financial term in this Agreement, the aggregate for two or more Persons of the amounts signified by such term for all such Persons, determined on a consolidated basis in accordance with GAAP. Unless otherwise specified herein, “Consolidated” shall refer to Borrower and its Subsidiaries, determined on a Consolidated basis.
“Consolidated Adjusted EBITDA” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated EBITDA for such period, minus (b) to the extent included in calculating Consolidated EBITDA for such period, any unpaid Eligible Revenues accrued during such period that have been extended and/or deferred beyond their original stated due date with the approval and/or agreement of the payee (including any such Eligible Revenues that have been subordinated as permitted under this Agreement), provided that if any Eligible Revenues are excluded in any given period due to the fact that it was extended and/or deferred under clause (b), such Eligible Revenues shall be included in Consolidated Adjusted EBITDA in the period in which it is paid.
“Consolidated EBITDA” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, without duplication, an amount equal to the sum of (a) Consolidated Net Income for such period, plus (b) the following to the extent deducted in calculating such Consolidated Net Income for such period: (i) Consolidated Interest Charges for such period; (ii) the provision for federal, state, local and foreign income taxes (or similar taxes imposed in lieu of income tax) payable for such period; (iii) the amount of depreciation and amortization expense for such period; (iv) amortization of intangibles (including goodwill) and organization
costs; (v) any extraordinary, non-recurring, unusual or exceptional losses, charges and expenses for such period, including without limitation, non-recurring severance payments, sales of assets, early extinguishment or restructuring of indebtedness (including prepayment premiums), acquisitions costs, reorganizations costs, write-offs, forgiveness of debt, placement fees, fund organizational expenses; (vi) non-cash charges for such period, including amortization or other expenses for stock options and other equity compensation and impairment charges or expenses; and (vii) net unrealized losses (gains), including unrealized performance allocation or incentive fee expense (revenue).
“Consolidated Funded Indebtedness” means, as of any date of determination with respect to Borrower and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP, without duplication, the sum of: (i) the outstanding principal amount of all obligations for borrowed money (including the Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (ii) the maximum amount available to be drawn under issued and outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (iii) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of
business) to the extent if and when such obligations are recognized as a liability under GAAP; (iv) all purchase money indebtedness;
(v) all attributable Indebtedness; (vi) all Disqualified Stock; (vii) all Guaranties with respect to Indebtedness of the types specified in clauses (i) through (vi) of another Person to the extent of the reasonably estimated liability of Borrower and its Subsidiaries; and (viii) all Indebtedness of the types referred to in clauses (i) through (vii) of any partnership in which Borrower or any of its Subsidiaries is a general partner, except to the extent that Indebtedness is expressly made non-recourse to such Person; provided that Consolidated Funded Indebtedness shall not include (1) any guaranteed Indebtedness for which recourse to such borrower is contractually limited to liability for customary recourse exceptions; (2) any so-called carry or completion guarantee; (3) any Indebtedness arising under any hedging or netting arrangement prior to the occurrence of a termination event with respect thereto; (4) operating leases and trade liabilities incurred in the ordinary course of business and payable in accordance with customary or past practices; (5) prepaid or deferred revenue arising in the ordinary course of business and not overdue for more than 60 days; (6) purchase price holdbacks arising in the ordinary course of business; (7) earn-out obligations until such obligations become a liability in accordance with GAAP; (8) any Indebtedness of employees of Borrower or any of its Subsidiaries that is guaranteed by Borrower or any Subsidiary for the benefit of such employees to invest in Borrower, its Subsidiaries or a CIM Fund, as part of an employee investment plan; and (9) any obligations incurred under ERISA in the ordinary course of business.
“Consolidated Interest Charges” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in respect of Indebtedness (including dividends on Disqualified Stock), in each case to the extent treated as interest in accordance with GAAP, (b) the portion of rent expense with respect to such period under Capital Leases that is treated as interest in accordance with GAAP, (c) the implied interest component of synthetic lease obligations with respect to such period and (d) net losses on hedge agreements or other derivative instruments entered into for the purpose of hedging interest rate risk.
“Consolidated Net Income” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, the net income (excluding extraordinary gains and losses) for that period as determined in accordance with GAAP.
“Consolidated Net Funded Indebtedness” means, as of any date of determination with respect to Borrower and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP, without duplication, the sum of (a) Consolidated Funded Indebtedness, less (b) the sum of unrestricted cash and cash equivalents free and clear of all Liens (other than
(x) Liens in favor of the Administrative Agent or holders of other Indebtedness secured equally and ratably with or on a junior basis to the Obligations and (y) Liens (not securing any Indebtedness) in favor of depository institutions or other customary liens arising by operation of law) as of the date of determination.
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Debt as of such date to (b) Consolidated Adjusted EBITDA for the period of four consecutive fiscal quarters most recently ended on such date for which financial statements have been (or were required to have been) delivered under Section 6.1(a) or (b).
“Consolidated Net Leverage Ratio” has the meaning set forth in Section 7.8(a) hereof. “Control” means the beneficial ownership, direct or indirect, of more than 50% of the outstanding voting Equity Interests of a Person on a fully-diluted basis and the power to appoint a majority of the board of directors or other most senior governing board of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled” and “Controlling” shall have meanings correlative to the foregoing.
“Covered Party” has the meaning set forth in Section 11.24(a) hereof. “Cure Expiration Date” has the meaning set forth in Section 7.8(a) hereof. “DBRS” means DBRS, Inc., and any successor thereto.
“Debt Rating” means the debt rating with respect to each series of Senior Notes and Additional Senior Notes as determined from time to time by any Acceptable Rating Agency.
“Debtor Relief Laws” means, collectively, the Bankruptcy Code and all other bankruptcy, insolvency, assignment for the benefit of creditors, moratorium, rearrangement, conservatorship, receivership, liquidation, reorganization or similar debtor relief laws of the United States or any other applicable jurisdictions, in each case as in effect from time to time.
“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Revolving Credit Percentage of any Advance within one (1) Business Day of the date such Advance was required to be funded hereunder, unless such Lender notifies the Agent and Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with
any applicable default, shall be specifically identified in such writing) has not been satisfied, or
(ii) pay to the Agent, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Swing Line Advances) within one
(1) Business Day of the date when due, (b) has notified Borrower, the Agent or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, unless such writing or public statement is based on such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing or public statement) has not been satisfied, (c) has failed, within three (3) Business Days after written request by the Agent or Borrower, to confirm in writing to the Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law,
(ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with liquidation or reorganization or of its business or assets, including the Federal Deposit Insurance Corporation or any other federal or state regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided, however, that a Lender shall not be a Defaulting Lender solely by virtue of
a Governmental Authority’s ownership or acquisition of any Equity Interest in such Lender, or any direct or indirect parent company thereof, so long as such ownership interest does not result in, or provide such Lender with, immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets, or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery by the Agent of written notice of such determination to Borrower, each Lender and the Swing Line Lender.
“Default Rate” means, with respect to (a) outstanding principal, the Applicable Interest Rate plus two percent (2.00%) per annum, and (b) with respect to all other Obligations accruing interest at the Default Rate pursuant to the terms of this Agreement, the Base Rate plus two percent (2.00%) per annum.
“Disclosure Documents” has the meaning set forth in Section 5.3 hereof.
“Disposition” means the sale, transfer, license, lease or other disposition of any property by any Loan Party or any Subsidiary, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Institution” means (i) any Person listed on Schedule 1.1 attached hereto,
(ii) with the approval of the Agent (such approval not to be unreasonably withheld, conditioned or delayed), any other Person that Borrower identifies to the Agent from time to time in writing as a competitor of Borrower or its Subsidiaries, and (iii) any Affiliate of any Person described in
clause (i) or clause (ii) that is identified by Borrower to the Agent from time to time in writing or is readily identifiable by name.
“Disqualified Stock” means, any Equity Interest in Borrower or its Subsidiaries that (a) matures or is mandatorily redeemable, other than an Equity Interest which is redeemable solely in exchange for other Equity Interests; (b) is convertible into or exchange or exercisable for Consolidated Net Funded Indebtedness; or (c) is redeemable at the option of its holder, in whole or in part, other than Equity Interests which are redeemable solely in exchange for other Equity Interests which are not “Disqualified Stock”, in each case on or prior to the Maturity Date.
“Dividing Person” has the meaning assigned to such term in the definition of “Division”.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
“Dollars” and the sign “$” means the lawful money of the United States of America.
“Domestic Subsidiary” shall mean any Subsidiary of Borrower incorporated or organized under the laws of the United States of America or any state or other political subdivision thereof, or which is considered to be a “disregarded entity” for United States federal income tax purposes and is not a “controlled foreign corporation” as defined under Section 957 of the Code, in each case provided such Subsidiary is owned by Borrower and/or one or more Domestic Subsidiaries of Borrower, and “Domestic Subsidiaries” shall mean any or all of them as the context shall indicate.
“EDGAR” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System or any successor SEC electronic filing system for such purposes.
“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.
“Electronic Transmission” shall mean each document, instruction, authorization, file, information or other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent system or service.
“Eligible Assignee” means a Qualified Purchaser that is (a) a Lender, (b) an Affiliate of a Lender, (c) any Person (other than a natural person) that is or will be engaged in the business of making, purchasing, holding or otherwise investing in commercial loans or similar extensions of credit in the ordinary course of its business, provided that such Person is administered or managed by a Lender, an Affiliate of a Lender, or an entity or Affiliate of an entity that administers or manages a Lender, or (d) any other Person (other than a natural person) approved by (i) the Agent and the Swing Line Lender and (ii) unless an Event of Default under Section 8.1(a), (b), (g) or (h) has occurred and is continuing, Borrower (each such approval not to be unreasonably withheld or delayed); provided, that Borrower shall be deemed to have consented to any such assignee unless it gives written notice of its objection to the Agent within five (5) Business Days after its receipt of notice thereof; and provided further, that notwithstanding the foregoing, (x) no Disqualified Institution may be an “Eligible Assignee”, (y) neither Borrower nor any of Borrower’s Affiliates or Subsidiaries may be an “Eligible Assignee”; and (z) no assignment shall be made to a Defaulting Lender (or any Person who would be a Defaulting Lender if such Person were a Lender hereunder) without the prior consent of the Agent and the Swing Line Lender.
“Eligible Revenue Percentage” means (a) at any time Fee Earning Equity Owned and Operated is less than $13,271,126,000, 80% of Eligible Revenues and (b) at all other times, 70% of Eligible Revenues.
“Eligible Revenues” means Management Fees, reimbursements, realized incentive fees, and realized performance allocations paid or payable to Borrower or any of its Subsidiaries.
“Equity Interest” 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. As used in this Agreement, “Equity Interests” shall not include convertible Indebtedness unless and until such Indebtedness has been converted to capital stock.
“ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together with Borrower under section 414 of the Code.
“Estate Planning Entity” means with respect to any individual, (a) any trust, the beneficiaries of which are primarily such individual and/or any Immediate Family Relative, or (b) any corporation, partnership, limited liability company or other entity that is primarily owned and controlled, directly or indirectly, by such individual, any Immediate Family Relative and/or any of the persons described in clause (a).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning set forth in Section 8.1 hereof. “Exchange Act” means the Securities Exchange Act of 1934.
“Excluded Taxes” shall mean 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 or gross income (however denominated), franchise Taxes and branch profits Taxes, in each case that are (i) imposed as a result of such Recipient’s 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) Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a loan or commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the loan or commitment (other than pursuant to an assignment request by Borrower under Section 11.12) or (ii) such Lender changes its lending office, except in each case to the extent that amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 11.13, and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Excluded Swap Obligation” shall mean any obligation of a Loan Party to the Agent or a Lender with respect to a “swap” (as defined in Section 1a(47) of the Commodity Exchange Act (“CEA”)) if and to the extent that such Loan Party’s guarantee of such swap obligation is or becomes illegal under the CEA, or any rule, regulation or order of the
Commodity Futures Trading Commission (or any successor or other agency at any time exercising its powers under the CEA), or the application or official interpretation of any thereof, by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” (as defined in Section 1a(18) of the CEA and the regulations thereunder) at the time such guarantee becomes effective with respect to such swap obligation. If any such swap obligation arises under a master agreement governing more than one swap, the foregoing exclusion shall apply only to those swap obligations that are attributable to swaps in respect of which such Loan Party’s guarantee is or becomes illegal.
“Extending Lenders” has the meaning set forth in Section 2.12(a) hereof. “Extension” has the meaning set forth in Section 2.12 hereof. “Extension Fee” has the meaning assigned to such term in the Fee Letter.
“E-System” means any electronic system or other Internet or extranet-based site, whether such electronic system is owned, operated, hosted or utilized by the Agent, any of its Affiliates or any other Person, providing for access to data protected by passcodes or other security system.
“FATCA” shall mean (i) 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), and any current or future regulations or official interpretations thereof, (ii) any agreement entered into pursuant to Section 1471(b)(1) of the Code, (iii) any intergovernmental agreement entered into in connection with the implementation of Sections 1471 through 1474 of the Code, and (iv) any legislation, rules or practices adopted pursuant to, or otherwise relating to, any such intergovernmental agreement.
“Federal Funds Rate” means, for any day, a fluctuating per annum interest rate equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent, all as conclusively determined by the Agent, such sum to be rounded upward, if necessary, in the discretion of the Agent, to the nearest whole multiple of 1/100th of 1%; provided that if the Federal Funds Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System.
“Fee Earning Equity Owned and Operated” means, at any time, the sum of (a) the aggregate net asset value before incentive fee allocations of all CIM Funds that generate (directly and/or through investments) any Eligible Revenues for Borrower and/or any of its Subsidiaries and/or any entities jointly owned with a co-sponsor, co-manager or co-servicer based upon the sponsorship, management and/or servicing by Borrower or any Subsidiary, as most recently reported by Borrower or any Affiliate of Borrower (and/or, in the case of any co-sponsored, co-managed or co-serviced CIM Fund, by any co-sponsor, co-manager or co-servicer) to the investors in such CIM Funds, plus (b) the aggregate amount, at the applicable report date(s), of unfunded commitments to all CIM Funds; provided that with
respect to any CIM Fund that is cosponsored, co-managed and/or co-serviced by a person that is not an Affiliate of Borrower, the Fee Earning Equity Owned and Operated of such CIM Fund shall at any time be equal to the Loan Parties’ pro rata share of such CIM Fund’s net asset value before incentive fee allocations and unfunded commitments (as determined by orrower in good faith based on the relative amount of asset management fees and other similar fees then being earned by the Loan Parties or their subsidiaries and by the other co-sponsor, co-manager and/or co-servicer of such CIM Fund).
“Fee Letter” shall mean the amended and restatedagent fee letter, dated as of the FirstThird Amendment Effective Date, by and amongbetween Borrower, and the Agent and the Lead Arrangers and relating to the Revolving Credit, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Fees” means the Revolving Credit Facility Fee and the other fees and charges (including any agency fees) payable by Borrower to the Lenders or the Agent hereunder or under the Fee Letter.
“Financial Covenant” means any covenant (whether set forth as a covenant, undertaking, event of default, restriction or other provision, including in related definitions and any provision related to the treatment of operating leases in connection with such covenant) that requires Borrower or any Subsidiary to achieve or maintain a stated level of financial condition or performance and includes, without limitation, any requirement that Borrower or any Subsidiary:
(a) maintain a specified level of net worth, shareholders’ equity, total assets, cash flow or net income;
(b) maintain any relationship of any component of its capital structure to any other component thereof (including, without limitation, the relationship of indebtedness, senior indebtedness or subordinated indebtedness to total capitalization or to net worth); and
(c) maintain any measure of its ability to service its indebtedness (including, without limitation, exceeding any specified ratio of revenues, cash flow or net income to indebtedness, interest expense, rental expense, capital expenditures and/or scheduled payments of indebtedness).
“First Amendment” means that certain First Amendment to Revolving Credit Agreement, dated as of the First Amendment Effective Date, by and among Borrower, the Additional Lender party thereto, the other Lenders party thereto and the Agent.
“First Amendment Effective Date” has the meaning set forth in the First Amendment.
“Fitch” means Fitch, Inc., and any successor thereto.
“Foreign Lender” means any Lender that is not a U.S. person.
“Form 10-K” has the meaning set forth in Section 6.1(b) hereof. “Form 10-Q” has the meaning set forth in Section 6.1(a) hereof.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, such Defaulting Lender’s Revolving Credit Percentage of outstanding Swing Line Advances made by the Swing Line Lender.
“GAAP” means (a) generally accepted accounting principles as in effect from time to time in the United States of America and (b) for purposes of Section 6.9, with respect to any Subsidiary, generally accepted accounting principles (including International Financial Reporting Standards, as applicable) as in effect from time to time in the jurisdiction of organization of such Subsidiary.
“GAAP Change Event” has the meaning set forth in Section 1.3 hereof.
“Governmental Authority” means
(a) the government of
(i) the United States of America or any state or other political subdivision thereof, or
(ii) any other jurisdiction in which Borrower or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of Borrower or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government; or
(c) any group or body charged with setting financial accounting or regulatory capital rules or standards (including the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
“Governmental Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.
“Guarantor Supplement” has the meaning set forth in Section 6.10(a)(i) hereof.
“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including obligations incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
“Hazardous Material” means any and all pollutants, toxic or hazardous wastes or other substances that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable law, including asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.
“Hedging Agreement” shall mean any agreement relating to an interest rate swap transaction, basis swap transaction, forward rate transaction, equity swap transaction, equity index transaction, foreign exchange transaction, cap transaction or floor transaction, any option with respect to any of the foregoing transactions, or any combination of any of the foregoing, in each case, entered into by Borrower or any of its Subsidiaries with the Agent or any Lender (or their respective Affiliates), in each case as amended, restated, supplemented or otherwise modified from time to time.
“Immediate Family Relative” means an individual’s lineal descendants (including any such descendants by adoption), siblings, parents, spouse, former spouses, current civil union partner, former civil union partners and the estates, guardians, custodians or other legal representatives of any of the foregoing.
“Indebtedness” means, with respect to any Person at any time, without duplication,
(a) its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property);
(c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all liabilities which would appear on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases were accounted for as Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money);
(f) the aggregate Swap Termination Value of all Swap Contracts of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of the character described in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning set forth in Section 11.5(b) hereof.
“Information” has the meaning set forth in Section 11.11 hereof.
“Interest Period” means, with respect to a Term SOFR Advance, an interest period of one (1), three (3) or six (6) months (in each case subject to availability thereof) as selected by Borrower, in any request for, conversion to, or continuation of such Term SOFR Advance; provided, however that (i) any Interest Period which would otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day, except that as to an Interest Period in respect of a Term SOFR Advance, if the next succeeding Business Day falls in another calendar month, such Interest Period shall end on the next preceding Business Day, (ii) when an Interest Period in respect of a Term SOFR Advance begins on the last Business Day of a calendar month or on a day which has no numerically corresponding day in the calendar month during which such Interest Period is to end, it shall end on the last Business Day of such calendar month, (iii) no Interest Period in respect of any Advance shall extend beyond the Revolving Credit Maturity Date, and (iv) no tenor that has been removed from this definition pursuant to Section 3.11 shall be available for election in any Request for Advance.
“Investment Advisers Act” means the Investment Advisers Act of 1940, as amended and the rules and regulations of the SEC thereunder, as modified or interpreted by orders of the SEC, or other interpretative releases or letters issued by the SEC or its staff, all as from time to time in effect, or any successor law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision.
“Investment Grade” has the meaning set forth in the definition of “Investment Grade Rating”.
“Investment Grade Rating” means a Debt Rating assigned to the Senior Notes or Additional Senior Notes from at least one Acceptable Rating Agency equal to or higher than (a) BBB- (or the equivalent) by Fitch, S&P, Kroll or DBRS, or (b) Baa3 by Moody’s (such ratings under clause (a) and clause (b) being “Investment Grade”); provided, that:
(i) if at any time there are two Debt Ratings assigned to the Senior Notes or Additional Senior Notes from Acceptable Rating Agencies, and the lower of such Debt Ratings that is in full force and effect (not having been withdrawn) is less than Investment Grade, then the Senior Notes or Additional Senior Notes, as applicable, shall be deemed not to have an “Investment Grade Rating”;
(ii) if at any time there are three or more Debt Ratings assigned to the Senior Notes or Additional Senior Notes from Acceptable Rating Agencies, and the then second lowest of such Debt Ratings that is in full force and effect (not having been withdrawn) is less than Investment Grade, then the Senior Notes or Additional Senior Notes, as applicable, shall be deemed not to have an “Investment Grade Rating” (provided, for the avoidance of doubt, if two or more of such Debt Ratings are equal or equivalent as the lowest such Debt
Rating, then one of such equal or equivalent Debt Ratings will be deemed to be the second lowest Debt Rating for purposes of such determination); and
(iii) if Borrower shall have failed to maintain a Debt Rating or receive and deliver to the Agent a Private Rating Letter from at least one Acceptable Rating Agency, in each case as required pursuant to Section 6.13, then the Senior Notes and/or Additional Senior Notes shall be deemed not to have an “Investment Grade Rating”.
“Key Employees” means any of Bethany Chang, Jeff Columbus, Jordan Dembo, Robert Dupree, Jennifer Gandin, Adam Gibbons, Ryan Harter, Michael Hoverman, Nick Morosoff, Mukya Porter Jason Schreiber, Jolly Singh, David Thompson, Emily Vande Krol and any other employee of Borrower or any of its Subsidiaries that is promoted to or designated a “Principal.”
“Kroll” means Kroll Bond Rating Agency, LLC, and any successor thereto.
“Lender Products” shall mean any one or more of the following types of services or facilities extended to any of the Loan Parties by any Lender: (i) credit cards, (ii) credit card processing services, (iii) debit cards, (iv) purchase cards, (v) Automated Clearing House (ACH) transactions, (vi) cash management, including controlled disbursement services, and (vii) establishing and maintaining deposit accounts.
“Lenders” has the meaning set forth in the preamble hereof, and shall include the Revolving Credit Lenders, the Swing Line Lender and any assignee that becomes a Lender pursuant to Section 11.8 hereof.
“Lien” means, with respect to any property, any mortgage, lien, pledge, charge, security interest or other similar encumbrance on such property, or any interest or title of any vendor, lessor, lender or other secured party to or of such property under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to such property.
“Loan Documents” means, collectively, this Agreement, the Notes (if issued), each Subsidiary Guaranty, each Guarantor Supplement, and any other agreement, certificate and/or instrument executed and/or delivered in connection therewith, each as may be amended, restated or otherwise modified from time to time.
“Loan Parties” shall mean, collectively, Borrower and each Subsidiary Guarantor, and “Loan Party” shall mean any one of them, as the context shall indicate.
“Majority Lenders” shall mean at any time, Lenders holding more than 50.0% of the Revolving Credit Aggregate Commitment (or, if the Revolving Credit Aggregate Commitment has been terminated (whether by maturity, acceleration or otherwise), the aggregate principal amount outstanding under the Revolving Credit); provided, however, that for purposes of determining Majority Lenders the principal amount outstanding under the Swing Line shall be allocated among the Revolving Credit Lenders based on their respective Revolving Credit Percentages; and provided further, that if there are (x) fewer than three (3) Lenders (considering any Lender and its Affiliates as a single Lender), Majority Lenders shall mean all Lenders or (y) three (3) or more Lenders (considering any Lender and its Affiliates as a single Lender), Majority Lenders shall include at least two (2) Lenders. The Revolving Credit Commitment Amounts of, and portion of the Obligations
attributable to, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders; provided, however, that the amount of any participation in any Swing Line Advance that a Defaulting Lender has failed to fund that has not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender in making a determination under this definition.
“Management Fees” means any fund management fees, property management fees, development fees, leasing or sales commissions or any other similar fees (but for the avoidance of doubt excluding any incentive fees, performance allocations, or carried interest) paid or payable to Borrower or any Subsidiary.
“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of Borrower and its Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of Borrower and its Subsidiaries taken as a whole, (b) the ability of Borrower or any other Loan Party, taken as a whole to perform their respective obligations under this Agreement or Borrower or any other Loan Document or (c) the validity or enforceability of this Agreement or any other Loan Document.
“Material Credit Facility” means, as to Borrower and its Subsidiaries, any agreement(s) creating or evidencing Indebtedness for borrowed money entered into by Borrower or any Subsidiary, or in respect of which Borrower or any Subsidiary is a obligor or otherwise provides a guarantee or other credit support, in a principal amount outstanding or available for borrowing equal to or greater than $50,000,000 (or the equivalent of such amount in the relevant currency of payment, determined as of the date of the closing of such facility based on the exchange rate of such other currency.
“Maturity Date” means the earlier to occur of (i) December 30March 28, 20252028 (subject to Borrower’s extension thereof pursuant to Section 2.12), and (ii) the date on which the Revolving Credit Aggregate Commitment terminates in accordance with the provisions of this Agreement.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender at such time.
“Non-U.S. Plan” means any plan, fund or other similar program that (a) is established or maintained outside the United States of America by Borrower or any Subsidiary primarily for the benefit of employees of Borrower or one or more Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and (b) is not subject to ERISA or the Code.
“Notes” means, collectively, the Revolving Credit Notes and the Swing Line Note.
“Obligations” shall mean the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the Advances and interest
accruing after the filing of any petition in bankruptcy, or the commencement of any proceeding under any Debtor Relief Law, relating to Borrower or any Subsidiary, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Advances and all other obligations and liabilities owed by Borrower or any Subsidiary to the Agent, any Lead Arranger, any Lender or the Swing Line Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, any Hedging Agreement, any Lender Products or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel to the Lead Arrangers, the Agent or any Lender that are required to be paid by Borrower pursuant hereto) or otherwise. Notwithstanding the foregoing, the term “Obligations” shall be deemed not to include any Excluded Swap Obligations.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource center/sanctions/Programs/Pages/Programs.aspx.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of Borrower whose responsibilities extend to the subject matter of such certificate.
“Original Subsidiary Guarantors” means, collectively, each of the Subsidiaries of Borrower set forth on Annex II hereof.
“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’s 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 Advance or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, from any payment made 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 11.12).
“Participant Register” has the meaning set forth in Section 11.8(f) hereof.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Percentage” means, as applicable, the Revolving Credit Percentage or the Weighted Percentage.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Dispositions” means (a) Dispositions of assets in the ordinary course of business on fair and reasonable terms, (b) Dispositions of property by a Loan Party to any other Loan Party or to a Wholly-Owned Subsidiary, (c) Dispositions by any Subsidiary which is not a Loan Party to another Subsidiary, (d) Dispositions of obsolete, damaged, uneconomic or worn out assets, or assets no longer used or useful in the conduct of the Loan Parties’ business and (e) Dispositions consisting of Restricted Payments permitted in accordance with Section 7.7.
“Permitted Investors” means (a) any of the CIM Founding Principals, (b) any of the Key Employees (excluding any such Key Employees who were not Key Employees at least twelve (12) months prior to obtaining a majority or more of the outstanding Equity Interests of Borrower); (c) any Immediate Family Relative of any of the CIM Founding Principals or Key Employees; (d) any Estate Planning Entity for the benefit of any person(s) described in clauses (a) through (c), (e) any family charitable foundation over which any person(s) described in subclauses (a) through (c) has direction, (f) Mitsui & Co., Ltd. and its controlled affiliates, (g) Sabre Investments LLC and its controlled affiliates and (h) any group (as defined in section 13(d) of the Exchange Act) containing any of the foregoing “Permitted Investors” so long as such members of such group own and control legal and beneficially at least 50.1% of the outstanding voting Equity Interests of the group.
“Permitted Tax Distribution” means, for each taxable year (or portion thereof) of Borrower for which Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, distributions to Borrower’s direct owner(s) to fund the U.S. federal, state and/or local income tax liability of such owner(s) (or, if a direct owner is a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, of Borrower’s ultimate indirect owner(s)) for such taxable year (or portion thereof) attributable to the operations and activities of Borrower (and those of any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes), in an amount not to exceed the product of (a) the amount of net taxable income (for the avoidance of doubt, calculated in accordance with the assumptions and limitations set forth in this definition) of Borrower (and Borrower’s allocable share of the net taxable income of any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes) for such taxable year (or portion thereof), reduced by net taxable loss or tax credit of Borrower (and Borrower’s allocable share of the net taxable loss or tax credit of any Subsidiaries that are treated as disregarded entities or partnerships for U.S. federal, state and/or local income tax purposes) with respect to the current taxable year and all prior taxable years (or portions thereof) to the extent deductible or creditable against such taxable income and to the extent such loss or credit has not previously been applied to reduce taxable income under this clause (a), times (b) the maximum combined U.S. federal, state and local income tax rates applicable to such income for such taxable year (or portion thereof) applicable to an individual residing in New York City, taking into account the character of Borrower’s income, the deductibility (and any limitations thereon) of state and local income taxes and the deductibility (and any limitations thereon) of expenses.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or governmental authority.
“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by Borrower or any ERISA Affiliate or with respect to which Borrower or any ERISA Affiliate may have any liability.
“Prime Rate” means the per annum rate of interest announced by the Agent, at its main office, from time to time as its “prime rate” (it being acknowledged that such announced rate may not necessarily be the lowest rate charged by the Agent to any of its customers), which Prime Rate shall change simultaneously with any change in such announced rate.
“Private Rating Letter” means a letter issued by an Acceptable Rating Agency in connection with any private debt rating for a series of the Senior Notes or Additional Senior Notes, which (a) sets forth the Debt Rating for such series of Senior Notes or Additional Senior Notes, as applicable, (b) refers to the Private Placement Number issued by Standard & Poor’s CUSIP Bureau Service in respect of such series of Senior Notes or Additional Senior Notes, as applicable, (c) addresses the likelihood of payment of both principal and interest on the Senior Notes or Additional Senior Notes, as applicable (which requirement shall be deemed satisfied if either (x) such letter includes confirmation that the rating reflects the Acceptable Rating Agency’s assessment of Borrower’s ability to make timely payment of principal and interest on the Senior Notes or Additional Senior Notes, as applicable, or a similar statement or (y) such letter is silent as to the Acceptable Rating Agency’s assessment of the likelihood of payment of both principal and interest and does not include any indication to the contrary), (d) includes such other information describing the relevant terms of the Senior Notes or Additional Senior Notes, as applicable, as may be required from time to time by the SVO or any other Governmental Authority having jurisdiction over any holder of the Senior Notes or Additional Senior Notes, as applicable, and (e) shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the letter from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of the Senior Notes or Additional Senior Notes, as applicable.
“Private Rating Rationale Report” means, with respect to any Private Rating Letter, a report issued by the Acceptable Rating Agency in connection with such Private Rating Letter setting forth an analytical review of the Senior Notes or Additional Senior Notes explaining the transaction structure, methodology relied upon, and, as appropriate, analysis of the credit, legal, and operational risks and mitigants supporting the assigned Private Rating for the Senior Notes or Additional Senior Notes, as applicable, in each case, on the letterhead of the Acceptable Rating Agency or its controlled website and generally consistent with the work product that an Acceptable Rating Agency would produce for a similar publicly rated security and otherwise in form and substance generally required by the SVO or any other Governmental Authority having jurisdiction over any holder of Senior Notes or Additional Senior Notes, as applicable, from time to time. Such report shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the report from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of Senior Notes or Additional Senior Notes.
“Preferred Stock” means any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“Public Market” means (a) a Public Offering has been consummated or (b) Borrower has a class of Equity Interests registered under Section 12(b) or 12(g) of the Exchange Act.
“Public Offering” means a public offering of the Equity Interests of Borrower in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8 (or successor form)) or a direct listing, in each case, pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Purchases” has the meaning set forth in Section 7.5 hereof.
“Purchasing Lender” has the meaning set forth in Section 11.12(a) hereof. “QFC Credit Support” has the meaning set forth in Section 11.24 hereof.
“Qualified Purchaser” has the meaning set forth in Section 2(a)(51)(A) of the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder, and includes any “qualified institutional buyer” as contemplated by Rule 2a51-1(g) issued pursuant to the Investment Company Act of 1940, as amended.
“Qualified Purchaser Certificate” means a certificate delivered by a Qualified Purchaser substantially in the form of Exhibit L.
“Recipient” means (a) the Agent or (b) any Lender. “Register” has the meaning set forth in Section 11.8(h) hereof.
“Refinancing” means the repayment in full of all Indebtedness and other obligations under that certain Amended and Restated Revolving Credit Agreement, dated as of December 17, 2019, by and among CIM Group, LLC, as borrower, the lenders from time to time party thereto and Comerica Bank, as administrative agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, and the termination of all commitments to provide financial accommodations, and all Guaranties and Liens granted, thereunder.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or, in each case, any successor thereto.
“Representative” has the meaning set forth in Section 11.11 hereof.
“Request for Advance” means a Request for Revolving Credit Advance or a Request for Swing Line Advance, as the context may indicate or otherwise require.
“Request for Extension” means a written request for an Extension made by Borrower and delivered to the Agent under Section 2.12(e).
“Request for Revolving Credit Advance” means a written request for a Revolving Credit Advance made by Borrower under Section 2.3 substantially in the form attached hereto as Exhibit A (or such other form to which the Agent and Borrower may agree from time to time).
“Request for Swing Line Advance” means a written request for a Swing Line Advance made by Borrower under Section 2.5(c) substantially in the form attached hereto as Exhibit B (or such other form to which the Agent and Borrower may agree from time to time).
“Requirement of Law” means, as to any Person, the certificate of incorporation or formation and the bylaws, partnership agreement or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitration, a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means any Senior Financial Officer and any other officer of Borrower with responsibility for the administration of the relevant portion of this Agreement.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interests or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.
“Revolving Credit” means the revolving credit made available to Borrower by the Revolving Credit Lenders pursuant to Article 2 hereof, in an aggregate amount (subject to the terms hereof) not to exceed, at any one time outstanding, the Revolving Credit Aggregate Commitment.
“Revolving Credit Advance” means an Advance requested by Borrower and made by the Revolving Credit Lenders under Section 2.1, including any re-advance, refunding or conversion of such Advance pursuant to Section 2.3, and, subject to the terms hereof, may be a Base Rate Advance or a Term SOFR Advance.
“Revolving Credit Aggregate Commitment” means, as of the SecondThird Amendment Effective Date, OneTwo Hundred Seventy-FiveFifty Million Dollars ($175,000,000.00250,000,000.00), as adjusted from time to time in accordance with the terms hereof.
“Revolving Credit Commitment Amount” means, as to any Revolving Credit Lender, (i) if the Revolving Credit Aggregate Commitment has not been terminated, the amount specified opposite such Revolving Credit Lender’s name in the column entitled “Revolving Credit Commitment Amount” on Annex III, as adjusted from time to time in accordance with the terms hereof; and (ii) if the Revolving Credit Aggregate Commitment has been terminated (whether by maturity, acceleration or otherwise), an amount equal to its Revolving Credit
Percentage of the aggregate principal amount outstanding under the Revolving Credit (including any outstanding Swing Line Advances).
“Revolving Credit Facility Fee” means the fee payable to the Agent for distribution to the Revolving Credit Lenders in accordance with Section 2.9.
“Revolving Credit Lenders” means the financial institutions from time to time parties hereto as lenders under the Revolving Credit.
“Revolving Credit Notes” means the revolving credit notes described in Section 2.2, each made by Borrower to the order of a Revolving Credit Lender in the form attached hereto as
Exhibit C, as such notes may be amended or supplemented from time to time, and any other notes issued in substitution, replacement or renewal thereof from time to time.
“Revolving Credit Percentage” means, as to any Revolving Credit Lender, the percentage specified opposite such Revolving Credit Lender’s name in the column entitled “Revolving Credit Percentage” on Annex III, as adjusted from time to time in accordance with the terms hereof.
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto.
“Sanctions” means any economic or financial sanctions programs or embargoes administered or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, HerHis Majesty’s Treasury or other authority having jurisdiction over any Loan Party or its Subsidiaries.
“SEC” means the Securities and Exchange Commission of the United States of America.
“Second Amendment” means that certain Second Amendment to Revolving Credit Agreement, dated as of the Second Amendment Effective Date, by and among Borrower, the Additional Lender party thereto, the other Lenders party thereto and the Agent.
“Second Amendment Effective Date” has the meaning set forth in the Second Amendment.
“Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder from time to time in effect.
“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of Borrower.
“Senior Notes” means, collectively, the 6.42% Series A Senior Notes due August 30, 2029, the 6.50% Series B Senior Notes due August 30, 2032 and the 6.75% Series C Senior Notes due August 30, 2034, in each case issued by Borrower pursuant to the Senior Notes Purchase Agreement.
“Senior Notes Purchase Agreement” means that certain Senior Notes Purchase Agreement, dated as of August 30, 2022, by and among Borrower and the purchasers party
thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in a manner not prohibited hereby.
“Significant Subsidiary” means, at any time, any Subsidiary that would at such time constitute a “significant subsidiary” (as such term is defined in Regulation S-X of the SEC as in effect on the Closing Date) of Borrower.
“SOFR” means a rate per annum equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“Solvent” means that, as of any date of determination with respect to Borrower and its Subsidiaries (determined on a Consolidated basis), (i) the aggregate amount of such Persons’ Indebtedness as at such date does not exceed the present fair saleable value of their assets on a going-concern basis as at such date, (ii) such Persons’ capital as of such date is not unreasonably small in relation to their business as contemplated on such date, (iii) such Persons have not incurred, and do not intend to incur or believe (nor should they reasonably believe) that they will incur, debts beyond their ability to pay as they become due (whether at maturity or otherwise), and (iv) such Persons are “solvent” within the meaning given that term and similar terms under any applicable Debtor Relief Law and applicable laws relating to fraudulent or avoidable transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be the amount that could reasonably be expected to become an actual and matured liability.
“Specified Equity Contribution” has the meaning set forth in Section 7.8(a) hereof.
“Specified Note” means that certain Promissory Noted, dated March 25, 2022, made by Borrower in favor of CIM Group Investments, LLC, a Delaware limited liability company, in the original aggregate principal amount of $66,000,000.
“Specified Transaction” shall mean any (i) material acquisition or investment, (ii) material sale or transfer of assets or property or other asset disposition (including any disposal, abandonment or discontinuance of operations), (iii) incurrence, repayment or refinancing of Consolidated Funded Indebtedness, or (iv) other transaction, election or other event for which this Agreement requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis.
“State Sanctions List” means a list that is adopted by any state Governmental Authority pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of any Sanctions.
“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily take major business actions without the prior approval of such Person
or one or more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of Borrower.
“Subsidiary Guarantor” means, collectively, the Original Subsidiary Guarantors and any other Subsidiary of Borrower that may from time to time guaranty the Obligations of Borrower pursuant to the Subsidiary Guaranty.
“Subsidiary Guaranty” means the Subsidiary Guaranty, substantially in the form set forth on Exhibit G hereto, dated as of the Closing Date, pursuant to which the Subsidiary Guarantors shall jointly and severally guaranty the Obligations of Borrower, as amended, restated, amended and restated, supplemented or otherwise modified from time to time (including by the Guarantor Supplements).
“Supported QFC” has the meaning set forth in Section 11.24 hereof. “SVO” means the Securities Valuation Office of the NAIC.
“Swap Contract” means (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including any options to enter into any of the foregoing), and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc. or any International Foreign Exchange Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amounts(s) determined as the mark-to-market values(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Swing Line” means the revolving credit made available to Borrower by the Swing Line Lender pursuant to Section 2.5, in an aggregate amount (subject to the terms hereof) not to exceed, at any one time outstanding, the Swing Line Maximum Amount.
“Swing Line Advance” means an Advance requested by Borrower and made by the Swing Line Lender pursuant to Section 2.5, which shall be a Base Rate Advance.
“Swing Line Lender” means City National Bank in its capacity as lender of Swing Line Advances under Section 2.5, or its successor as subsequently designated hereunder.
“Swing Line Maximum Amount” means, as of the SecondThird Amendment Effective Date, Sixty-Five Million Six Hundred Twenty-Five Thousand Dollars ($65,625,000an amount equal to the greater of (x) twenty percent (20%) of the Revolving Credit Agreement Commitment and (y) the unfunded Revolving Credit Commitment Amount of City National Bank, in its capacity as a Revolving Credit
Lender, in each case of the foregoing clauses (x) and (y), not to exceed Fifty Million Dollars ($50,000,000), as adjusted from time to time in accordance with the terms hereof.
“Swing Line Note” means the swing line note which may be executed by Borrower payable to the order of the Swing Line Lender pursuant to Section 2.5(b)(ii) hereof in the form attached hereto as Exhibit D, as such note may be amended or supplemented from time to time, and any note or notes issued in substitution, replacement or renewal thereof from time to time.
“Swing Line Participation Certificate” means the Swing Line Participation Certificate delivered by the Agent to each Revolving Credit Lender pursuant to Section 2.5(e)(ii) in the form attached hereto as Exhibit E.
“Syndication Agent” means Truist Bank, in its capacity as the syndication agent hereunder.
“Synthetic Lease” means, at any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“Taxes” means, all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means
(a) for any calculation with respect to a Term SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to a Base Rate Advance on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term
SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day;
provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Applicable Floor, then Term SOFR shall be deemed to be the Applicable Floor.
“Term SOFR Administrator” means the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR Advance” means any Advance which bears interest at Term SOFR.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Third Amendment” means that certain Third Amendment to Revolving Credit Agreement, dated as of the Third Amendment Effective Date, by and among Borrower, the Lenders party thereto and the Agent.
“Third Amendment Effective Date” has the meaning set forth in the Third Amendment.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction; provided that, unless otherwise specified or the context otherwise requires, such terms shall refer to the Uniform Commercial Code as in effect from time to time in the State of New York.
“USA Patriot Act” means United States Public Law 107 56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the rules and regulations promulgated thereunder from time to time in effect.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” has the meaning set forth in Section 11.24 hereof.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 11.13 hereof.
“Weighted Percentage” means, with respect to any Lender, its weighted percentage calculated by dividing (i) its Revolving Credit Commitment Amount, by (ii) the Revolving Credit Aggregate Commitment (or, if the Revolving Credit Aggregate Commitment has been terminated (whether by maturity, acceleration or otherwise), the aggregate principal amount outstanding under the Revolving Credit, including any outstanding Swing Line Advances. Annex III reflects each Lender’s Weighted Percentage, and may be revised by the Agent from time to time to reflect changes in the Weighted Percentages of the Lenders.
“Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of the equity interests (except directors’ qualifying shares, employee and profit-sharing interests) and voting interests of which are owned by any one or more of Borrower and Borrower’s other Wholly-Owned Subsidiaries at such time.
“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.
“Withholding Agent” means any Loan Party and the Agent.
“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Interpretive Provisions. For purposes of this Agreement:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) References herein to “sections,” “subsections,” “clauses,” “paragraphs,” “subparagraphs,” “exhibits,” “annexes” and “schedules” shall be to sections, subsections, clauses, paragraphs, subparagraphs, exhibits, annexes and schedules, respectively, of this Agreement unless otherwise specified or unless the context otherwise clearly indicates.
(c) The terms “including” and “include” are not limiting, and mean “including or include without limitation.”
(d) The terms “hereof”, “hereto”, “hereunder” and similar terms shall refer to this Agreement and not to any particular paragraph or provision of this Agreement.
(e) In computing periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”
(f) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement and the other Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements, supplements and other modifications thereto, but only to the extent such amendments, restatements, supplements and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory provisions amending, replacing, supplementing or interpreting such statute or regulation.
(g) References to the “ordinary course” refer to the ordinary course of business of Borrower and its Subsidiaries, taken as a whole, unless otherwise specified.
(h) This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Agent, the Lenders, Borrower and the other parties thereto and are the products of all parties. Accordingly, they shall not be construed against the Agent or a Lender merely because of the Agent’s or such Lender’s involvement in their preparation.
1.3 Accounting Terms; Divisions.
(a) Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or other requirement set forth in any Loan Document (a “GAAP Change Event”), at Borrower’s request the Agent and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided, that until so amended, each such ratio or requirement shall continue to be computed in conformity with GAAP as in effect immediately prior to such change. Following any GAAP Change Event, and until such ratio or requirement is so amended, Borrower shall provide with any financial statements delivered under Sections 6.1(a) and 6.1(d) an internally-prepared reconciliation between such financial statements and any financial information required for the computation of such ratio or requirement in accordance with GAAP as in effect prior to such GAAP Change Event.
(b) Notwithstanding anything to the contrary in Section 1.3(a) or in the definition of “Capitalized Lease,” any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a capital lease, any lease that would have been treated as an operating lease under GAAP as in effect on December 31, 2015 shall continue to be considered an operating lease, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith.
(c) For all purposes under the Loan Documents, in connection with any Division, (a) if any asset, right, obligation or liability of any Dividing Person becomes the asset, right, obligation or liability of a Division Successor, then it shall be deemed to have been transferred from the Dividing Person to the Division Successor, and (b) any Division Successor shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
1.4 Rates. The Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, Term SOFR Reference Rate, Term SOFR or any component thereof or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower or any other Person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. In connection with the use or administration of any Benchmark, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Agent will promptly notify Borrower and the Lenders of the effectiveness of any Conforming Changes.
1.5 Pro Forma Calculations. For the avoidance of doubt:
(a) For purposes of determining compliance with any provision of this Agreement that refers to “pro forma compliance”, “pro forma effect” or to any determination being made on a “pro forma basis” or words of similar effect, any Specified Transaction occurring since the first day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been (or were required to have been) delivered pursuant to Section 6.1(a) or Section 6.1(b) shall be deemed to have occurred as of, and pro forma adjustments arising out of events attributable to such Specified Transaction shall be made from and after, the first day of such four fiscal quarter measurement period and continuing through the last day of such four fiscal quarter measurement period.
(b) Upon giving effect to a transaction on a “pro forma” basis, (i) any Indebtedness incurred by Borrower or any of its Subsidiaries in connection with such Specified Transaction shall be deemed to be Indebtedness on the last day of such four fiscal quarter measurement period, (ii) income statement items (whether positive or negative) and Consolidated Adjusted EBITDA attributable to all property acquired in such Specified Transaction, or to the investment constituting such Specified Transaction, as applicable, shall be included as if such Specified Transaction had occurred as of the first day of such four fiscal quarter measurement period, and (iii) income statement items (whether positive or negative) attributable to all property disposed of in any Specified Transaction shall be excluded as if such Specified Transaction had occurred as of the first day of such four fiscal quarter measurement period.
(c) Whenever pro forma effect is to be given to any Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer of Borrower.
(d) Whenever a financial ratio or test is to be calculated on a pro forma basis, the relevant measurement period for purposes of calculating such financial ratio or test shall be the most recently ended four fiscal quarter period for which the financial statements of Borrower and its Subsidiaries have been (or were required to have been) delivered pursuant to Section 6.1(a) or Section 6.1(b), and such calculation shall be based on such financial statements.
2. REVOLVING CREDIT.
2.1 Commitment. Subject to the terms and conditions of this Agreement (including Section 2.3), each Revolving Credit Lender severally and for itself alone agrees to make Advances of the Revolving Credit in Dollars to Borrower from time to time on any Business Day during the period from the Closing Date until (but excluding) the Maturity Date in an aggregate amount not to exceed at any one time outstanding such Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment. Subject to the terms and conditions set forth herein, advances, repayments and re-advances may be made under the Revolving Credit.
2.2 Accrual of Interest and Maturity; Evidence of Obligations.
(a) Borrower hereby unconditionally promises to pay to the Agent for the account of each Revolving Credit Lender the then unpaid principal amount of each Revolving Credit Advance (plus all accrued and unpaid interest) of such Revolving Credit Lender to Borrower on the Maturity Date and on such other dates and in such other amounts as may be required from time to time pursuant to this Agreement. Subject to the terms and conditions hereof, each Revolving Credit Advance shall, from time to time from and after the date of such Advance (until paid), bear interest at its Applicable Interest Rate.
(b) Each Revolving Credit Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of Borrower to the appropriate lending office of such Revolving Credit Lender resulting from each Revolving Credit Advance made by such lending office of such Revolving Credit Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Revolving Credit Lender from time to time under this Agreement.
(c) The Agent shall maintain the Register pursuant to Section 11.8(h), and a subaccount therein for each Revolving Credit Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Revolving Credit Advance made hereunder, the type thereof and each Interest Period applicable to any Term SOFR Advance, (ii) the amount of any principal or interest due and payable or to become due and payable from Borrower to each Revolving Credit Lender hereunder in respect of the Revolving Credit Advances and (iii) both the amount of any sum received by the Agent hereunder from Borrower in respect of the Revolving Credit Advances and each Revolving Credit Lender’s share thereof.
(d) The entries made in the Register maintained pursuant to Section 2.2(c) and Section 11.8(h) shall, absent manifest error, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of Borrower therein recorded; provided, however, that the failure of any Revolving Credit Lender or the Agent to maintain the Register or any account, as applicable, or any error therein, shall not in any manner affect the obligation of Borrower to repay the Revolving Credit Advances (and all other amounts owing with respect thereto) made to Borrower by the Revolving Credit Lenders in accordance with the terms of this Agreement.
(e) Borrower agrees that, upon written request to the Agent by any Revolving Credit Lender, Borrower will execute and deliver, to such Revolving Credit
Lender, at Borrower’s own expense, a Revolving Credit Note evidencing the outstanding Revolving Credit Advances owing to such Revolving Credit Lender.
2.3 Requests for and Refundings and Conversions of Advances. Borrower may request an Advance (other than a Swing Line Advance, which shall be governed by Section 2.5) of the Revolving Credit, a refund of any Revolving Credit Advance in the same type of Advance or to convert any Revolving Credit Advance to any other type of Revolving Credit Advance only by delivery to the Agent of a Request for Revolving Credit Advance executed by a Responsible Officer of Borrower, subject to the following:
(a) each such Request for Revolving Credit Advance shall set forth the information required on the Request for Revolving Credit Advance, including:
(i) the proposed date of such Revolving Credit Advance (or the refunding or conversion of an outstanding Revolving Credit Advance), which must be a Business Day;
(ii) whether such Advance is a new Revolving Credit Advance or a refunding or conversion of an outstanding Revolving Credit Advance; and
(iii) whether such Revolving Credit Advance is to be a Base Rate Advance or a Term SOFR Advance, and, with respect to each Term SOFR Advance, the first Interest Period applicable thereto; provided, however, that the initial Revolving Credit Advance made under this Agreement shall be a Base Rate Advance, which may then be converted into a Term SOFR Advance in compliance with this Agreement.
(b) each such Request for Revolving Credit Advance shall be delivered to the Agent by 11:00 a.m. (Los Angeles time) three (3) Business Days prior to the proposed date of the Revolving Credit Advance, except in the case of a Base Rate Advance, for which the Request for Revolving Credit Advance must be delivered by 11:00 a.m. (Los Angeles time) one (1) Business Day prior to the proposed date for such Revolving Credit Advance;
(c) on the proposed date of such Revolving Credit Advance, the aggregate principal amount of all Revolving Credit Advances and Swing Line Advances outstanding on such date, after giving effect to all outstanding requests for Revolving Credit Advances and Swing Line Advances, shall not exceed the Revolving Credit Aggregate Commitment;
(d) in the case of a Base Rate Advance, the principal amount of the initial funding of such Advance, as opposed to any refunding or conversion thereof, shall be at least $1,000,000 (or a larger integral multiple of $100,000) or the remainder available under the Revolving Credit Aggregate Commitment if less than $1,000,000;
(e) in the case of a Term SOFR Advance, the principal amount of such Advance, plus the amount of any other outstanding Revolving Credit Advance to be then combined therewith having the same Interest Period, if any, shall be at least $2,000,000 (or a larger integral multiple of $100,000) or the remainder available under the Revolving Credit Aggregate Commitment if less than $2,000,000, and at any one time there shall not be in effect more than five (5) different Interest Periods; and
(f) a Request for Revolving Credit Advance, once delivered to the Agent, shall not be revocable by Borrower.
The Agent, acting on behalf of the Revolving Credit Lenders, may also, at its option, lend under this Section 2.3 upon the telephone or email request of a Responsible Officer of Borrower to make such requests and, in the event the Agent, acting on behalf of the Revolving Credit Lenders, makes any such Advance upon a telephone or email request, a Responsible Officer of Borrower shall fax or deliver by electronic file to the Agent, on the same day as such telephone or email request, an executed Request for Revolving Credit Advance. Borrower hereby authorizes the Agent to disburse Advances under this Section 2.3
pursuant to the telephone or email instructions of any person purporting to be a Responsible Officer of Borrower. Notwithstanding the foregoing, Borrower acknowledges that Borrower shall bear all risk of loss resulting from disbursements made upon any telephone or email request. Each telephone or email request for an Advance from a Responsible Officer of Borrower shall constitute a certification of the matters set forth in the Request for Revolving Credit Advance form as of the date of such requested Advance.
2.4 Disbursement of Advances.
(a) Upon receiving any Request for Revolving Credit Advance from Borrower under Section 2.3, the Agent shall promptly notify each Revolving Credit Lender by wire, telex or telephone (confirmed by wire, telecopy or telex) of the amount of such Advance being requested and the date such Revolving Credit Advance is to be made by each Revolving Credit Lender in an amount equal to its Revolving Credit Percentage of such Advance. Unless such Revolving Credit Lender’s commitment to make Revolving Credit Advances hereunder shall have been suspended or terminated in accordance with this Agreement, each such Revolving Credit Lender shall make available the amount of its Revolving Credit Percentage of each Revolving Credit Advance in immediately available funds to the Agent by no later than 8:00 a.m. (Los Angeles time) on the date specified in the related Request for Revolving Credit Advance.
(b) Subject to the fulfillment of all applicable conditions set forth herein, the Agent shall make available to Borrower the aggregate of the amounts so received by it from the Revolving Credit Lenders in like funds and currencies by no later than 10:00 a.m. (Los Angeles time) on the date specified in the related Request for Revolving Credit Advance, by wire-transfer of such proceeds to the account specified in the related Request for Revolving Credit Advance.
(c) The Agent shall deliver the documents and papers received by it for the account of each Revolving Credit Lender to such Revolving Credit Lender. Unless the Agent shall have been notified by any Revolving Credit Lender prior to the date of any proposed Revolving Credit Advance that such Revolving Credit Lender does not intend to make available to the Agent such Revolving Credit Lender’s Percentage of such Advance, the Agent may assume that such Revolving Credit Lender has made such amount available to the Agent on such date, as aforesaid. The Agent may, but shall not be obligated to, make available to Borrower the amount of such payment in reliance on such assumption. If such amount is not in fact made available to the Agent by such Revolving Credit Lender, as aforesaid, the Agent shall be entitled to recover such amount on demand from such Revolving Credit Lender. If such Revolving Credit Lender does not pay such amount forthwith upon the Agent’s demand therefor and the Agent has in fact made a corresponding amount available to Borrower, the Agent shall promptly notify Borrower and Borrower shall pay such amount to the Agent, if such notice is delivered to Borrower prior to 12:00 p.m. (Los Angeles time) on a Business Day, on the day such notice is received, and otherwise on the next Business Day, and such amount paid by Borrower shall be applied as a prepayment of the Revolving Credit (without any corresponding reduction in the Revolving Credit Aggregate Commitment), reimbursing the Agent for having funded said amounts on behalf of such Revolving Credit Lender. Borrower shall retain its claim against such Revolving Credit Lender with respect to the amounts repaid by it to the Agent and, if such Revolving Credit Lender subsequently makes such amounts available to the Agent, the Agent shall promptly make such amounts available to Borrower as a Revolving Credit Advance. The Agent shall also be entitled to recover from such Revolving Credit Lender or Borrower, as the case may be, but without duplication, interest on such amount in respect of each day from the date such amount was
made available by the Agent to Borrower, to the date such amount is recovered by the Agent, at a rate per annum equal to:
(i) in the case of such Revolving Credit Lender, for the first two (2) Business Days such amount remains unpaid, the Federal Funds Effective Rate, and thereafter, at the rate of interest then applicable to such Revolving Credit Advances (plus any administrative, processing or similar fees assessed by Agent in connection with the foregoing); and
(ii) in the case of Borrower, the rate of interest then applicable to such Advance of the Revolving Credit.
Until such Revolving Credit Lender has paid the Agent such amount, such Revolving Credit Lender shall have no interest in or rights with respect to such Advance for any purpose whatsoever. The obligation of any Revolving Credit Lender to make any Revolving Credit Advance hereunder shall not be affected by the failure of any other Revolving Credit Lender to make any Advance hereunder, and no Revolving Credit Lender shall have any liability to Borrower or any of its Subsidiaries, the Agent, any other Revolving Credit Lender, or any other party for another Revolving Credit Lender’s failure to make any loan or Advance hereunder.
2.5 Swing Line.
(a) Swing Line Advances. The Swing Line Lender may, on the terms and subject to the conditions hereinafter set forth (including in Section 2.5(c)), but shall not be required to, make one or more Advances (each such advance being a “Swing Line Advance”) to Borrower from time to time on any Business Day during the period from the Closing Date until (but excluding) the Maturity Date in an aggregate amount not to exceed at any one time outstanding the Swing Line Maximum Amount. On the terms and subject to the conditions set forth herein, advances, repayments and re-advances may be made under the Swing Line.
(b) Accrual of Interest and Maturity; Evidence of Obligations.
(i) The Swing Line Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of Borrower to the Swing Line Lender resulting from each Swing Line Advance from time to time, including the amount and date of each Swing Line Advance, its Applicable Interest Rate, its Interest Period, if any, and the amount and date of any repayment made on such Swing Line Advance from time to time. The entries made in the Swing Line Lender’s account or accounts shall be prima facie evidence, absent manifest error, of the existence and amounts of Borrower’s obligations therein recorded; provided, however, that the Swing Line Lender’s failure to maintain any such account or accounts, as applicable, or any error therein, shall not in any manner affect Borrower’s obligation to repay the Swing Line Advances (and all other amounts owing with respect thereto) in accordance with the terms of this Agreement.
(ii) Borrower agrees that, upon Swing Line Lender’s written request, Borrower will execute and deliver to the Swing Line Lender a Swing Line Note.
(iii) Borrower unconditionally promises to pay to the Swing Line Lender the then unpaid principal amount of any Swing Line Advances (plus all accrued and unpaid interest) on the Maturity Date and on such other dates and in such other amounts as may be required from time to time pursuant to this Agreement. Subject to the terms and conditions hereof, each Swing Line Advance shall, from time to time after the date of such Advance (until paid), bear interest at its Applicable Interest Rate.
(c) Requests for Swing Line Advances. Borrower may request a Swing Line Advance by delivering to the Swing Line Lender a Request for Swing Line Advance executed by
a Responsible Officer of Borrower. The Swing Line Lender’s obligation to make the requested Swing Line Advance shall be subject to satisfaction of all of the following conditions:
(i) such Request for Swing Line Advance shall set forth the information required on the Request for Swing Line Advance, including (A) the proposed date of such Swing Line Advance, which must be a Business Day and (B) any other information required on the Request for Swing Line Advance;
(ii) on the proposed date of such Swing Line Advance, after giving effect to all outstanding requests for Swing Line Advances made by Borrower as of such date, the aggregate principal amount of all outstanding Swing Line Advances shall not exceed the Swing Line Maximum Amount;
(iii) on the proposed date of such Swing Line Advance, after giving effect to all outstanding requests for Revolving Credit Advances and Swing Line Advances made by Borrower as of such date, the aggregate principal amount of all outstanding Revolving Credit Advances and Swing Line Advances shall not exceed the Revolving Credit Aggregate Commitment;
(iv) the principal amount of the requested Swing Line Advance shall be at least Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), or such lesser amount to which the Swing Line Lender may agree;
(v) each such Request for Swing Line Advance shall be delivered to the Swing Line Lender not later than 10:00 a.m. (Los Angeles time) on the proposed date of such Swing Line Advance; and
(vi) each Request for Swing Line Advance, once delivered to the Swing Line Lender, shall be irrevocable.
Unless sooner paid pursuant to the provisions hereof, the principal amount of the Swing Line Advances shall be paid in full, together with accrued interest thereon, on the Maturity Date. The Agent may, at its option, also elect to make Swing Line Advances upon Borrower’s telephone requests on the basis set forth in the last paragraph of Section 2.3, provided that Borrower complies with the provisions of this Section 2.5.
(d) Disbursements of Swing Line Advances. Upon receiving any executed Request for Swing Line Advance from Borrower and the satisfaction of the conditions set forth in Section 2.5(c), the Swing Line Lender shall, at its option, make the requested amount available to Borrower in Dollars not later than 2:00 p.m. (Los Angeles time) on the date of such Swing Line Advance, by credit to an account of Borrower maintained with the Agent or to such other account or third party as Borrower may reasonably direct in writing, subject to applicable law, provided such direction is timely given. The Swing Line Lender shall promptly notify the Agent of any Swing Line Advance by telephone, telex or telecopier.
(e) Refunding of or Participation Interest in Swing Line Advances.
(i) The Agent, at any time in its sole and absolute discretion, may, in each case on behalf of Borrower (which hereby irrevocably directs the Agent to act on its behalf), request each of the Revolving Credit Lenders (including the Swing Line Lender in its capacity as a Revolving Credit Lender) to make an Advance of the Revolving Credit to Borrower, in an amount equal to such Revolving Credit Lender’s Revolving Credit Percentage of the aggregate principal amount of the Swing Line Advances outstanding on the date such notice is given (the “Refunded
Swing Line Advances”). The applicable Revolving Credit Advances used to refund any Swing Line Advances shall be Base Rate Advances. In connection with the making of any such Refunded Swing Line Advances or the purchase of a participation interest in Swing Line Advances under Section 2.5(e)(ii), the Swing Line Lender shall retain its claim against Borrower for any unpaid interest or fees in respect thereof accrued to the date of such refunding. Unless any of the events described in Section 8.1(g) or Section 8.1(h) shall have occurred (in which event the procedures of Section 2.5(e)(ii) shall apply) and regardless of whether the conditions precedent set forth in this Agreement to the making of a Revolving Credit Advance are then satisfied (but subject to Section 2.5(e)(iii)), each Revolving Credit Lender shall make the proceeds of its Revolving Credit Advance available to the Agent for the benefit of the Swing Line Lender at the office of the Agent specified in Section 2.4(a) prior to 8:00 a.m. (Los Angeles time) on the Business Day next succeeding the date such notice is given, in immediately available funds. The proceeds of such Revolving Credit Advances shall be immediately applied to repay the Refunded Swing Line Advances, subject to the provisions of Section 3.1.
(ii) If, prior to the making of an Advance of the Revolving Credit pursuant to Section 2.5(e)(i), one of the events described in Section 8.1(g) or Section 8.1(h) shall have occurred, each Revolving Credit Lender will, on the date such Advance of the Revolving Credit was to have been made, purchase from the Swing Line Lender an undivided participating interest in each Swing Line Advance that was to have been refunded in an amount equal to its Revolving Credit Percentage of such Swing Line Advance. Each Revolving Credit Lender within the time periods specified in Section 2.5(e)(i), as applicable, shall immediately transfer to the Agent, for the benefit of the Swing Line Lender, in immediately available funds, an amount equal to its Revolving Credit Percentage of the aggregate principal amount of all Swing Line Advances outstanding as of such date. Upon receipt thereof, the Agent will deliver to such Revolving Credit Lender a Swing Line Participation Certificate evidencing such participation.
(iii) Each Revolving Credit Lender’s obligation to make Revolving Credit Advances to refund Swing Line Advances, and to purchase participation interests, in accordance with Sections 2.5(e)(i) and 2.5(e)(ii), respectively, shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of any Default or Event of Default; (C) any adverse change in the condition (financial or otherwise) of Borrower or any other Person; (D) any breach of this Agreement or any other Loan Document by Borrower or any other Person; (E) any inability of Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Revolving Credit Advance is to be made or such participating interest is to be purchased; (F) the termination of the Revolving Credit Aggregate Commitment hereunder; or (G) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any Revolving Credit Lender does not make available to the Agent the amount required pursuant to Sections 2.5(e)(i) or 2.5(e)(ii), as the case may be, the Agent on behalf of the Swing Line Lender, shall be entitled to recover such amount on demand from such Revolving Credit Lender, together with interest thereon for each day from the date of non-payment until such amount is paid in full (x) for the first two (2) Business Days such amount remains unpaid, at the Federal Funds Effective Rate and (y) thereafter, at the
rate of interest then applicable to such Swing Line Advances. The obligation of any Revolving Credit Lender to make available its pro rata portion of the amounts required pursuant to Sections 2.5(e)(i) or 2.5(e)(ii) shall not be affected by the failure of any other Revolving Credit Lender to make such amounts available, and no Revolving Credit Lender shall have any liability to any Loan Party, the Agent, the Swing Line Lender, or any other Revolving Credit Lender or any other party for another Revolving Credit Lender’s failure to make available the amounts required under Sections 2.5(e)(i) or 2.5(e)(ii).
(iv) Notwithstanding the foregoing, no Revolving Credit Lender shall be required to make any Revolving Credit Advance to refund a Swing Line Advance or to purchase a participation in a Swing Line Advance if at least two (2) Business Days prior to the making of such Swing Line Advance by the Swing Line Lender, the officers of the Swing Line Lender immediately responsible for matters concerning this Agreement shall have received written notice from the Agent or any Lender that Swing Line Advances should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however that the obligation of the Revolving Credit Lenders to make or refund such Swing Line Advance or purchase a participation in such Swing Line Advance) shall be reinstated upon the date on which such Default or Event of Default has been waived by the requisite Lenders.
2.6 Interest Payments; Default Interest.
(a) Subject to clause (e) of this Section 2.6, all Advances hereunder shall bear interest at a per annum interest rate equal to the Applicable Interest Rate for such Advances.
(b) Accrued interest on (x) each Base Rate Advance of the Revolving Credit and Swing Line Advance shall be payable in immediately available funds quarterly in arrears on the first Business Day of each calendar quarter (in respect of the prior calendar quarter or any portion thereof), and (y) each Term SOFR Advance of the Revolving Credit shall be payable in immediately available funds on the last day of the Interest Period applicable thereto (and, if any Interest Period shall exceed three months, then on the last Business Day of the third month of such Interest Period, and at three month intervals thereafter), and in each case at such other times as may be specified herein; provided that (i) interest accrued pursuant to clause (e) of this Section 2.6 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Revolving Credit Advance or Swing Line Advance (other than a prepayment of a Base Rate Advance prior to the Maturity Date), 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 Term SOFR Advance prior to the end of the Interest Period therefor, accrued interest on such Advance shall be payable on the effective date of such conversion.
(c) Interest accruing in respect of any Advance shall be computed on the basis of a 360-day year (other than to the extent bearing interest based on clause (a) of the definition of Base Rate, which shall be based on the basis of a 365-day year) and assessed for the actual number of days elapsed.
(d) Notwithstanding anything to the contrary in the preceding sections, all accrued and unpaid interest on any Revolving Credit Advance refunded or converted pursuant to Section 2.3 and any Swing Line Advance refunded pursuant to Section 2.5(e), shall be due and payable in full on the date such Advance is refunded or converted.
(e) Upon the occurrence and during the continuance of any Default or Event of Default, all Obligations shall bear interest, after as well as before judgment, at the
Default Rate, and all accrued and unpaid interest all Revolving Credit Advances and Swing Line Advances shall be payable on demand.
2.7 Optional Prepayments.
(a) (i) Borrower may prepay all or part of the outstanding principal of any Base Rate Advance of the Revolving Credit at any time (subject to delivery of written notice thereof to the Agent by no later than 11:00 a.m. (Los Angeles time) one (1) Business Day prior to the date of such prepayment), and (ii) subject to Section 2.10(d), Borrower may prepay all or part of the outstanding principal of any Term SOFR Advance of the Revolving Credit at any time (subject to delivery of written notice thereof to the Agent by no later than 11:00 a.m. (Los Angeles time) three (3) Business Days prior to the date of such prepayment ).
(b) Borrower may prepay all or part of the outstanding principal of any Swing Line Advance carried at the Base Rate at any time (subject to delivery of written notice thereof to the Agent by no later than 11:00 a.m. (Los Angeles time) on the date of such prepayment).
(c) Any prepayment of a Base Rate Advance made in accordance with this Section 2.7 shall be without premium or penalty, and any prepayment of any other type of Advance shall be subject to the provisions of Section 3.1, but otherwise without premium or penalty.
2.8 Base Rate Advance in Absence of Election or Upon Default. If, if on the last day of the applicable Interest Period a Default or an Event of Default shall have occurred and be continuing, then, on the last day of the applicable Interest Period the principal amount of any Term SOFR Advance which has not been prepaid shall, absent a contrary election of the Majority Lenders, be converted automatically to a Base Rate Advance and the Agent shall thereafter promptly notify Borrower in writing of said action. All accrued and unpaid interest on any Advance converted to a Base Rate Advance under this Section 2.8 shall be due and payable in full on the date such Advance is converted.
2.9 Revolving Credit Facility Fee. Borrower shall pay to the Agent for distribution to the Revolving Credit Lenders pro-rata in accordance with their respective Revolving Credit Percentages, a Revolving Credit Facility Fee, which shall accrue quarterly from the Closing Date and be payable in arrears on the first Business Day of each calendar quarter (in respect of the prior calendar quarter or any portion thereof), commencing January 2, 2023 and on the Maturity Date. The Revolving Credit Facility Fee payable to the Revolving Credit Lenders shall be determined by multiplying the Applicable Fee Percentage by the average daily unused amount of the Revolving Credit Aggregate Commitment then in effect; provided that the amount of outstanding Swing Line Advances shall not be considered usage of the Revolving Credit Aggregate Commitment for the purpose of calculating the Revolving Credit Facility Fee. The Revolving Credit Facility Fee shall be computed on the basis of a year of three hundred sixty (360) days and assessed for the actual number of days elapsed. Upon its receipt of each such payment, the Agent shall make prompt payment to each Revolving Credit Lender of its share of the Revolving Credit Facility Fee based upon its respective Revolving Credit Percentage. It is expressly understood that the Revolving Credit Facility Fee payments described in this Section 2.9 are not refundable.
2.10 Mandatory Repayment of Revolving Credit Advances.
(a) If at any time and for any reason that the aggregate outstanding principal amount of Revolving Credit Advances plus Swing Line Advances exceeds the Revolving Credit Aggregate Commitment, Borrower shall immediately repay Revolving Credit Advances and Swing Line Advances in an amount equal to the amount of such excess. Borrower acknowledges that, in connection with any repayment required hereunder, it shall
also be responsible for the reimbursement of any prepayment or other costs required under Section 3.1.
(b) Within ten (10) Business Days following the first date any series of the Senior Notes or Additional Senior Notes fails to have an Investment Grade Rating (a “Below Investment Grade Rating Event”), Borrower shall give written notice of such event (a “Below Investment Grade Rating Notice”) to the Agent, which Below Investment Grade Rating Notice shall describe the facts and circumstances of such ratings downgrade in reasonable detail. By no later than the date that is ten (10) Business Days prior to (x) any Below Investment Grade Rating Prepayment Date (as defined in the Senior Notes Purchase Agreement) or (y) such other date on which Borrower is required to redeem any Senior Notes or Additional Senior Notes as a result of a Below Investment Grade Rating Event, Borrower shall, by written notice to the Agent for distribution to the Lenders, offer (each such offer, a “Commitment Termination Offer”) to permanently reduce the Revolving Credit Aggregate Commitment by an amount equal to the result of (i) the aggregate principal amount of Senior Notes and Additional Senior Notes so redeemed by Borrower divided by (ii) the aggregate principal amount of all then outstanding Senior Notes and Additional Senior Notes at the time of such Commitment Termination Offer multiplied by (iii) the then-outstanding Revolving Credit Aggregate Commitment at the time of such Commitment Termination Offer. To accept a Commitment Termination Offer, a Lender or the Swing Line Lender, as the case may be, shall deliver a written notice of such acceptance (each such acceptance, a “Commitment Termination Acceptance”) to the Agent and Borrower within ten (10) Business Days of Borrower’s delivery of such Commitment Termination Offer to Agent. If any Lender or the Swing Line Lender does not deliver a Commitment Termination Acceptance to the Agent and Borrower within such ten (10) Business Day period, then such Lender or the Swing Line Lender, as the case may be, shall be deemed to have rejected such Commitment Termination Offer. If less than all Lenders and the Swing Line Lender, collectively, deliver a Commitment Termination Acceptance within such ten (10) Business Day period, then the amount of such commitment reduction shall be applied to the Revolving Credit Commitment Amount of the Persons that delivered a Commitment Termination Acceptance (to the extent such person had elected) notwithstanding any pro rata sharing provisions otherwise set forth in this Agreement. Such commitment reduction shall become effective on the Below Investment Grade Rating Prepayment Date (as defined in the Senior Notes Purchase Agreement) or such other date on which Borrower is required to redeem any Senior Notes or Additional Senior Notes as a result of a Below Investment Grade Rating Event; provided, that, if the aggregate outstanding principal amount of Revolving Credit Advances and Swing Line Advances exceeds the Revolving Credit Aggregate Commitment after giving effect to such commitment reduction, Borrower shall, concurrently with such commitment reduction, repay Revolving Credit Advances and Swing Line Advances in an amount equal to the amount of such excess. Nothing in this Section 2.10(b) shall be construed to limit the rights or remedies of the Agent or the Lenders following a Default or Event of Default.
(c) Subject to the provisions of Section 9.2, any payments made pursuant to this Section 2.10 shall be applied first to outstanding Base Rate Advances under the Revolving Credit, next to Swing Line Advances, and then to Term SOFR Advances under the Revolving Credit.
(d) To the extent that, on the date any mandatory repayment of the Revolving Credit Advances under this Section 2.10 or payment pursuant to the terms of any of the Loan Documents is due, the Obligations under the Revolving Credit or any other Obligations to be prepaid is being carried, in whole or in part, at Term SOFR and no Default or Event of Default has occurred and is continuing, Borrower may deposit the amount of such mandatory prepayment in a cash collateral account to be held by the Agent, for and on behalf
of the Revolving Credit Lenders, on such terms and conditions as are reasonably acceptable to the Agent and upon such deposit the obligation of Borrower to make such mandatory prepayment shall be deemed satisfied. Subject to the terms and conditions of said cash collateral account, sums on deposit in said cash collateral account shall be applied (until exhausted) to reduce the principal balance of the Revolving Credit on the last day of each Interest Period attributable to the Term SOFR Advances of such Revolving Credit, thereby avoiding breakage costs under Section 3.1; provided, however, that if a Default or Event of Default shall have occurred at any time while sums are on deposit in the cash collateral account, the Agent may, in its sole discretion, elect to apply such sums to reduce the principal balance of such Term SOFR Advances prior to the last day of the applicable Interest Period, and Borrower will be obligated to pay any resulting breakage costs under Section 3.1.
2.11 [Reserved].
2.12 Extension of Maturity Date. Borrower shall have an option to extend the Maturity Date then in effect for up to two (2) additional terms following the ClosingThird Amendment Effective Date (each, an “Extension”), each not longer than twelve (12) months, subject to satisfaction of the following conditions precedent:
(a) each of the extending Lenders (such Lenders, the “Extending Lenders”), the Swing Line Lender and the Agent in its sole discretion shall have consented to, and obtained credit approval for, such Extension;
(b) as of the effective date of such Extension and immediately after giving effect thereto, the representations and warranties set forth herein and in the other Loan Documents are true and correct in all material respects with the same force and effect as if made on and as of such date (other than any representation or warranty that expressly speaks as of a different date, in which case such representation and warranty shall be true and correct in all material respects as of such different date); provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects;
(c) Borrower shall have paid the Extension Fee to the Agent for the ratable benefit of the Extending Lenders consenting to such Extension;
(d) no Event of Default shall have occurred and be continuing on the date on which notice is given in accordance with the following clause (e) or on the effective date of such Extension; and
(e) Borrower shall have delivered, by no later than the date that is thirty (30) days prior to the Maturity Date subject to Extension, a Request for Extension to the Agent (which shall be promptly forwarded by the Agent to each Lender).
2.13 Commitment Increase.
(a) Borrower may, on one occasion, by written notice to the Agent, request an increase to the Revolving Credit Aggregate Commitment (a “Commitment Increase”; and the effective date of such Commitment Increase, the “Commitment Increase Effective Date”), in an aggregate amount not to exceed, from and after the SecondThird Amendment Effective Date, $25,000,00050,000,000. Such Commitment Increase may only be provided by an Eligible Assignee (any such Eligible Assignee, an “Additional Lender”); provided, that, in no event shall any existing Lender be obligated to provide any such Commitment Increase.
(b) Such Commitment Increase shall become effective, as of the Commitment Increase Effective Date, so long as:
(i) the conditions set forth in Section 4.2 shall have be satisfied as of the Commitment Increase Effective Date, mutatis mutandis; provided, that, satisfaction of the conditions set forth in clauses (c), and (d) of such Section
4.2 shall only be required to the extent that any Advances are made on such Commitment Increase Effective Date;
(ii) such Commitment Increase shall be in an aggregate principal amount that is not less than $100,000 and increments of $100,000 in excess thereof;
(iii) the Agent shall have received (A) customary legal opinions addressed to the Lenders, board resolutions and officers’ certificates consistent with those delivered on the Closing Date and (B) such other documents as may be reasonably requested by the Agent; and
(iv) Borrower shall have paid any fees that are payable to the Agent and the Additional Lenders as mutually agreed and shall have reimbursed the Agent for all costs and expenses of the Lender in connection therewith that are reimbursable by Borrower pursuant to the terms of this Agreement.; and
(v) each of the Additional Lenders, the Swing Line Lender and the Agent in its sole discretion shall have consented to, and obtained credit approval for, such Commitment Increase.
(c) Any Commitment Increase shall be deemed for all purposes of this Agreement and the other Loan Documents as an increase to the Revolving Credit Aggregate Commitment, having the same terms and conditions applicable thereto as are applicable to the commitments provided to Borrower on the Closing Date. Such Commitment Increase shall be effected by an amendment to this Agreement (a “Commitment Increase Amendment”) executed by Borrower, the Agent, the Swing Line Lender and the Additional Lenders, in form and substance reasonably satisfactory to each of them, which shall include an amendment to Annex III hereto to give effect to such Commitment Increase. The Commitment Increase Amendment may, without the consent of any other Person, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate (which may be in the form of an amendment and restatement of this Agreement), in the opinion of the Agent and Borrower, to effect the provisions of this Section 2.13.
(d) Upon the effectiveness of the Commitment Increase, (i) the Swing Line Maximum Amount shall also be increased on a ratable basis (it being understood and agreed that in no event shall the Swing Line Maximum Amount exceed Seventy-FiveFifty Million Dollars ($75,000,00050,000,000)), (ii) each Lender immediately prior to such Commitment Increase will automatically and without further act be deemed to have assigned to each Additional Lender, and each Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in any outstanding Swing Line Advances, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each such Additional Lender’s) participations hereunder in outstanding Swing Line Advances shall be held based on their Revolving Credit Percentage (determined after giving effect to such Commitment Increase) and (iii) the existing Lenders will automatically and without further act be deemed to have assigned outstanding Revolving Credit Advances to the other Lenders (including the Additional Lenders), and such other Lenders (including the Additional Lenders) will automatically and without further act be deemed to have purchased such Revolving Credit Advances, in each case, to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Credit Advances based on their Revolving Credit Percentage (determined after giving effect to any such Commitment Increase); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata
payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this Section 2.13(d).
3. YIELD PROTECTION; INCREASED COSTS; MARGIN ADJUSTMENTS; TAXES.
3.1 Reimbursement of Prepayment Costs. In the event of (a) the payment of any principal of any Term SOFR Advance other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Term SOFR Advance other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow, convert, continue or prepay any Term SOFR Advance on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any Term SOFR Advance other than on the last day of the Interest Period applicable thereto as a result of a request by Borrower pursuant to Section 11.12, then, in any such event, Borrower shall compensate each Lender for any funding or other loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds. 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 Borrower and shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
3.2 Suspension of Term SOFR Advances. Each Term SOFR Advance shall be subject to the following:
(a) if the Agent is unable to determine the Term SOFR Reference Rate applicable for a new, continued or converted Term SOFR Advance for any reason, or any law, regulation or governmental order, rule or determination makes it unlawful for any Lender or its lending office to fund or maintain such Term SOFR Advance or to continue such funding or maintaining, the Agent or such Lender, as applicable, shall give notice of such changed circumstances to Borrower and, in the case of a notice delivered by a Lender, the Agent and (i) all applicable Term SOFR Advances shall be converted to Base Rate Advances on the date specified in the Agent’s or such Lender’s notice, as applicable, and (ii) Borrower shall not be entitled to elect Term SOFR (whether at the time when the applicable Advance was made or upon conversion from a Base Rate Advance to such Advance or continuation of such Advance) until the Agent determines that it would no longer be unable, or such Lender determines that it would no longer be unlawful, to do so, as applicable; and
(b) if at any time the Agent shall notify Borrower that Term SOFR in respect of a Term SOFR Advance will not adequately reflect the cost to the Agent and the Lenders of making, maintaining or continuing such Advance, (i) all applicable Term SOFR Advances shall be converted to Base Rate Advances on the date specified in the Agent’s notice and (ii) Borrower shall not be entitled to elect Term SOFR (whether at the time when the applicable Advance was made or upon conversion from a Base Rate Advance to such Advance or continuation of such Advance) until the Agent determines that the circumstances causing such suspension no longer exist. Upon any such conversion, Borrower shall also pay any additional amounts required pursuant to Section 3.1, if applicable.
3.3 [Reserved].
3.4 [Reserved].
3.5 Increased Costs. If any Change in Law shall:
(a) subject any of the Lenders to any Taxes (except for (A) Excluded Taxes and (B) any Indemnified Taxes) on the Advances, loan principal, commitments, or other obligations, or its deposits, reserves other liabilities or capital attributable thereto; or
(b) impose, modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirements (including any emergency, special, supplemental or other marginal reserve requirement), special deposit, liquidity, compulsory loan, insurance charge
or similar requirement against assets of, deposits with or for the account of, or credit extended by, any of the Lenders); or;
(c) impose on any Lender or the foreign exchange and interbank markets any other condition, cost or expense (other than Taxes) affecting any Advance; and the result of any of the foregoing matters is to increase the costs to any of the Lenders of making, converting to, continuing or maintaining any Advance or of maintaining its obligation to make any such Advance, or to increase the cost to any Lender, or to reduce the amount of any sum received or receivable by any Lender (whether of principal, interest or any other amount), then such Lender shall promptly notify the Agent, and the Agent shall promptly notify Borrower of such fact and demand compensation therefor and, within ten (10) Business Days after such notice, Borrower agree to pay to such Lender or Lenders such additional amount or amounts as will compensate such Lender or Lenders for such increased cost or reduction, provided that each Lender agrees to take any reasonable action, to the extent such action could be taken without cost or unreasonable (as determined solely by such Lender) administrative or other burden or restriction to such Lender, to mitigate or eliminate such cost or reduction, within a reasonable time after becoming aware of the foregoing matters. The Agent will promptly notify Borrower of any event of which it has knowledge which will entitle Lenders to compensation pursuant to this Section, or which will cause Borrower to incur additional liability under Section 3.1, provided that the Agent shall incur no liability whatsoever to the Lenders or Borrower in the event it fails to do so. A certificate of the Agent (or such Lender, if applicable) setting forth the basis for determining such additional amount or amounts necessary to compensate such Lender or Lenders shall accompany such demand and shall be conclusively presumed to be correct absent manifest error.
3.6 Capital Adequacy and Other Increased Costs. If any Change in Law affects or would affect the capital or liquidity requirements of a Lender or the Agent (or any corporation controlling such Lender or the Agent) and such Lender or the Agent, as the case may be, determines that the amount of required capital is increased by, or based upon the existence of such Lender’s or the Agent’s obligations or Advances hereunder, the effect of such Change in Law is to result in such an increase, and such increase has the effect of reducing the rate of return on such Lender’s or the Agent’s (or such controlling corporation’s) capital as a consequence of such obligations or Advances hereunder to a level below that which such Lender or the Agent (or such controlling corporation) could have achieved but for such circumstances (taking into consideration its policies with respect to capital adequacy or liquidity) by an amount deemed by such Lender or the Agent to be material, then the Agent or such Lender shall notify Borrower, and thereafter Borrower shall pay to such Lender or the Agent, as the case may be, within ten (10) Business Days of written demand therefor from such Lender or the Agent, additional amounts sufficient to compensate such Lender or the Agent (or such controlling corporation) for any such reduction which such Lender or the Agent determines to be allocable to the existence of such Lender’s or the Agent’s obligations or Advances hereunder. A statement setting forth the amount of such compensation, the methodology for the calculation and the calculation thereof which shall also be prepared in good faith and in reasonable detail by such Lender or the Agent, as the case may be, shall be submitted by such Lender or by the Agent to Borrower, reasonably promptly after becoming aware of any event described in this Section 3.6 and shall be conclusively presumed to be correct, absent manifest error.
3.7 Right of Lenders to Fund through Branches and Affiliates. Each Lender (including the Swing Line Lender) may, if it so elects, fulfill its commitment as to any Advance hereunder by designating a branch or Affiliate of such Lender to make such Advance; provided that (a) such Lender shall remain solely responsible for the performances
of its obligations hereunder and (b) no such designation shall result in any material increased costs to Borrower or the Agent.
3.8 Margin Adjustment. Adjustments to the Applicable Margin based on Annex I, shall be implemented on a quarterly basis as follows:
(a) Such adjustments shall be given prospective effect only, effective as to all Advances outstanding hereunder, on the first day of the month immediately following the date of delivery (or required delivery) of the financial statements under Sections 6.1(a) and 6.1(d) hereunder and the Compliance Certificate under Section 6.2 hereof (any such day, a “Pricing Adjustment Date”), in each case establishing applicability of the appropriate adjustment and in each case with no retroactivity or claw-back. In the event Borrower shall fail timely to deliver such financial statements or the related Compliance Certificate and such failure continues for three (3) days, then (but without affecting the Event of Default resulting therefrom) from the date delivery of such financial statements and report was required until such financial statements and report are delivered, the Applicable Margins shall be at the highest level on the pricing matrix attached to this Agreement as Annex I.
(b) From the Closing Date until the first Pricing Adjustment Date occurring thereafter, the Applicable Margins shall be those set forth under the Level I column of the pricing matrix attached to this Agreement as Annex I. Thereafter, Applicable Margins shall be determined based upon the certified calculation of the Consolidated Net Leverage Ratio set forth in the quarterly or annual financial statements and related Compliance Certificate, subject to recalculation as provided in clauses (a) above and (c) below.
(c) Notwithstanding the foregoing, if, prior to the payment and discharge in full (in cash) of all Obligations and the termination of any and all commitments hereunder, as a result of any restatement of or adjustment to the financial statements of Borrower and any of its Subsidiaries (relating to the current or any prior fiscal period) or for any other reason, the Agent determines that the Applicable Margin as calculated by Borrower as of any applicable date of determination were inaccurate in any respect and a proper calculation thereof would have resulted in different pricing for any fiscal period, then (x) if the proper calculation thereof would have resulted in higher pricing for any such period, Borrower shall automatically and retroactively be obligated to pay to the Agent, promptly upon demand by the Agent or the Majority Lenders, 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 and, if the current fiscal period is affected thereby, the Applicable Margin for the current period shall be adjusted based on such recalculation; and (y) if the proper calculation thereof would have resulted in lower pricing for such period, the Agent and Lenders shall have no obligation to recalculate such interest or fees or to repay any interest or fees to Borrower.
3.9 Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Article III shall not constitute a waiver of such Lender’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender pursuant to Sections 3.4, 3.5 or 3.6 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies Borrower of the Change in Law (provided that this provision will not apply to any Change in Law of the type referred to in clauses (x), (y) or (z) of the definition thereof) giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof).
3.10 Taxes.
(a) 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) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Agent, timely reimburse it for the payment of, any Other Taxes.
(c) As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.10, such Loan Party shall deliver to the 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 Agent.
(d) 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 3.10, (including by payment of additional amounts pursuant to this Section 3.10), it shall pay to the indemnifying party an amount equal to such refund or indemnification (but only to the extent of additional amounts or indemnification paid under this Section 3.10 with respect to the Taxes giving rise to such refund), net of all 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 (d) (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 (d), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (d) the payment of which would place the 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 or withheld and the 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.
(e) Borrower shall indemnify each Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Person or required to be withheld or deducted from a payment to such Person and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to Borrower by a Lender (with a copy to the Agent) or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(f) Each Lender shall severally indemnify and hold the Agent harmless against (i) any Indemnified Taxes attributable to such Lender (but only to the extent Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.8 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 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 Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the 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 Agent to the Lender from any other source against any amount due to the Agent under this paragraph (f). Each Lender agrees to make all such payments to the Agent required hereunder within ten (10) days after demand therefor.
(g) For purposes of this Section 3.10, the term “applicable law” includes
FATCA.
(h) Each party’s obligations under this Section 3.10 shall survive the
resignation or replacement of the Agent or any assignment of rights by, or the replacement of a Lender, the termination of the Revolving Credit Aggregate Commitment and the repayment, satisfaction or discharge of all obligations under any Loan Document.
3.11 Benchmark Replacement Setting.
(a) Notwithstanding anything to the contrary herein or in any other Loan Document (including Section 3.2), upon the occurrence of a Benchmark Transition Event, the Agent may at any time thereafter amend this Agreement to replace the then current Benchmark with an alternate benchmark rate selected by the Agent and Borrower, together with any spread or other adjustment to be applied to such alternate benchmark rate (including any mathematical or other adjustments to the benchmark), giving due consideration to any evolving or then existing convention for determining a rate of interest as a replacement to such current Benchmark for Dollar denominated bank-originated or syndicated loans in the U.S. market (the “Benchmark Replacement”). If the Benchmark Replacement as so determined would be less than the Applicable Floor, the Benchmark Replacement will be deemed to be the Applicable Floor for the purposes of this Agreement. Any such amendment will become effective at 5:00 p.m. on the effective date specified in such amendment (such date, the “Benchmark Replacement Date”) without any further action or consent of Borrower or the Lenders, so long as the Agent has not received, by the fifteenth (15th) calendar day after the Agent has provided such proposed amendment to Borrower and the Lenders, written notice of objection to such amendment from Borrower or from the Lenders comprising the Majority Lenders. If Borrower or the Majority Lenders object to such amendment to implement the Benchmark Replacement, then the Benchmark Replacement will not be effective hereunder, but from and after the occurrence of the Benchmark Replacement Date, Borrower shall not be entitled to elect that the interest rate on Advances be based upon the then current Benchmark (whether at the time when made, upon conversion from a Base Rate Advance, or upon continuation of an Advance bearing interest based upon such Benchmark) and at such time as the Agent elects, all Advances bearing interest based upon the then current Benchmark shall be converted into Base Rate Advances at the end of the applicable Interest Period therefor or sooner if the Lenders cannot continue to maintain such Advance at the current Benchmark (subject to Borrower’s right to have
Advances bear interest based upon the Benchmark Replacement once such rate is implemented hereunder in accordance with the terms of this Section 3.11).
(b) As used in this Section 3.11: (i) “Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Replacement Date has occurred with respect to the Term SOFR Reference Rate or any then current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to this Section 3.11; and (ii) “Benchmark Transition Event” means the occurrence of one or more of the following events with respect to a then current Benchmark: (A) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof); (B) a public statement or publication of information by a governmental authority having jurisdiction over the Agent or the Lenders, the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof); (C) a public statement or publication of information by a governmental authority having jurisdiction over the Agent or the Lenders or the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark is no longer, or as of a specified future date will no longer be, representative or is not in compliance or aligned, or as a specified future date will be in compliance or aligned, with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; or (D) the circumstances set forth in Section 3.2 have arisen and such circumstances are unlikely to be temporary.
(c) In connection with the implementation of a Benchmark Replacement, the Agent will have the right from time to time to make Conforming Changes. The Agent will promptly notify Borrower and the Lenders of the implementation of any Conforming Changes.
(d) Any determination, decision or election that may be made by the Agent or any Lender pursuant to this Section 3.11 including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in the Agent’s or such Lender’s sole discretion and without consent from Borrower, except, in each case, as expressly required pursuant to this Section 3.11.
(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then current Benchmark is a term rate and either (A) the tenor for such Benchmark is not displayed on a screen or other information service that publishes such
rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that the tenor for such Benchmark is or will be no longer representative, or is not or will no longer be in compliance or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Agent may modify the definition of “Interest Period” (or any similar or analogous definition, if any) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if the tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of “Interest Period” (or any similar or analogous definition, if any) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
4. CONDITIONS.
The obligations of the Lenders to make Advances pursuant to this Agreement are subject to the following conditions:
4.1 Conditions of Initial Advances. The obligation of each Lender to make its initial Advance on the Closing Date is subject to the satisfaction of all of the following conditions:
(a) Notes, this Agreement and the other Loan Documents. (i) Borrower shall have executed and delivered to the Agent (x) this Agreement, (y) for the benefit of each Lender requesting a Revolving Credit Note or the Swing Line Note, as applicable, and (z) each other Loan Document to which it is required to be a party, in each case together with all schedules and other documents to be delivered in connection therewith; (ii) each other Loan Party shall have executed and delivered to the Agent (x) the Subsidiary Guaranty and (y) each of the other Loan Documents to which it is required to be a party, in each case, together with all schedules and other documents to be delivered in connection therewith; and (iii) all such Loan Documents shall be in full force and effect.
(b) Authority Documents. The Agent shall have received a certificate of the Secretary or Assistant Secretary of Borrower, in form and substance satisfactory to the Agent and dated as of the Closing Date, attaching for each Loan Party:
(i) copies of such Loan Party’s articles or certificate of incorporation and bylaws, articles or certificate of formation and operating agreement, or other constitutional documents, in each case as in effect on the Closing Date;
(ii) a certificate of good standing or continued existence (or the equivalent thereof) from the state of its incorporation or formation, which jurisdictions are listed on Schedule 4.1(b) attached hereto;
(iii) resolutions of such Loan Party’s directors, managers, general partners or their equivalent authorizing the transactions contemplated by this Agreement and the other Loan Documents, approving this Agreement and the other Loan Documents, and authorizing such Loan Party to execute, deliver and perform its obligations under each of the Loan Documents to which it is a party, and in the case of Borrower authorizing the execution and delivery of Requests for Advance hereunder; and
(iv) evidence of the incumbency and signature of the Responsible Officers of such Loan Party or other persons authorized to execute and deliver on
its behalf the Loan Documents to which it is a party, and in the case of Borrower the Responsible Officers authorized to execute any Requests for Advance.
(c) Opinions of Counsel. Borrower shall have delivered to the Agent opinions of counsel to the Loan Parties, including opinions of local counsel to the extent deemed necessary by the Agent, in each case in form and substance reasonably satisfactory to the Agent, dated the Closing Date and covering such matters as the Agent and the Lenders may reasonably require.
(d) No Material Adverse Change. Since September 30, 2022, nothing has occurred which has had, or could reasonably be expected to have, a Material Adverse Effect.
(e) Insurance. The Agent shall have received reasonably satisfactory evidence that the Loan Parties have obtained the insurance policies required by Section 6.5 and that such insurance policies are in full force and effect.
(f) Payment of Fees. Borrower shall have paid to the Agent (for itself or on behalf of the Lenders) any fees due on the Closing Date under the Fee Letter, together with any other fees, costs or expenses due and payable to the Agent (for itself or on behalf of the Lenders) as of the Closing Date to the extent such other fees, costs or expenses are documented and invoiced two (2) Business Days prior to the Closing Date (or such later date as Borrower may agree to in its discretion) (including reasonable fees, disbursements and other charges of counsel to the Agent).
(g) Financial Statements. Borrower shall have delivered to the Agent and the Lenders, in form and substance satisfactory to the Agent, the unaudited consolidated quarterly balance sheet and consolidated income statement for Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2022.
(h) Due Diligence. The Agent and the Lenders shall have received, in each case in form and substance satisfactory to the Agent, such due diligence materials as the Agent and the Majority Lenders have reasonably requested.
(i) Solvency Certificate. The Agent shall have received a certificate of a Responsible Officer of Borrower certifying that on the Closing Date, after effect to the transactions contemplated by this Agreement and the other Loan Documents, Borrower and its Subsidiaries (on a Consolidated basis) will be Solvent.
(j) Lien Searches. The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a recent date) indicating the absence of Liens on the assets of Borrower and its Subsidiaries, except for Liens permitted hereunder.
(k) Closing Certificate. The Agent shall have received a certificate of a Responsible Officer of Borrower dated as of the Closing Date and certifying that (i) the conditions set forth in clauses (d), (l) and (m) of this Section 4.1 have been satisfied as of the Closing Date and (ii) Borrower is in pro forma compliance with the Financial Covenant set forth in Section 7.8(a) for the four consecutive fiscal quarter period most recently ended, calculated on a pro forma basis after giving effect to such Advance and the use of proceeds thereof, but without netting the proceeds thereof.
(l) No Default. No Default or Event of Default shall exist as of the Closing Date immediately before and immediately after giving effect to this Agreement and the transactions contemplated hereby.
(m) Accuracy of Reps and Warranties. Each of the representations and warranties made by the Loan Parties in this Agreement and in each of the other Loan Documents shall be true and correct in all material respects as of the Closing Date (other than any representation or warranty that expressly speaks as of a different date, in which case such representation and warranty shall be true and correct in all material respects as of such different date); provided that any such representations and warranties which are qualified by
materiality, Material Adverse Effect or similar language shall be true and correct in all respects.
(n) Refinancing. The Refinancing shall have been, or substantially concurrently with the funding of the initial Revolving Credit Advance hereunder on the Closing Date, shall be consummated.
(o) KYC. Borrower shall have provided to the Agent and the Lenders at least three (3) Business Days prior to the Closing Date, (i) an executed Certificate of Beneficial Ownership (to the extent required under the Beneficial Ownership Regulation) and (ii) such other documentation and other information reasonably requested by the Agent and any Lender in order to comply with the requirements of the USA PATRIOT Act and all “know your customer” requirements.
(p) Funding Notice. The Agent shall have received a duly executed Request
for Advance.
Except as set forth in any closing condition letter between Borrower and the Agent, by releasing its signature page to this Agreement the Agent and each Lender shall be deemed to have consented to, approved or accepted as satisfactory each document or other matter required by this Section 4.1 to be consented to, approved or accepted as satisfactory by the Agent or such Lender, as the case may be.
4.2 Continuing Conditions. The obligation of each Lender to make any Advance (other than any continuation, conversion or refunding) after the Closing Date, is subject to the satisfaction of all of the following conditions:
(a) No Default or Event of Default shall exist as of the date of the Advance.
(b) Each of the representations and warranties made by the Loan Parties in this Agreement and in each of the other Loan Documents shall be true and correct in all material respects as of the date of the Advance as if made on and as of such date (other than any representation or warranty that expressly speaks as of a different date, in which case such representation and warranty shall be true and correct in all material respects as of such different date); provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects.
(c) The Agent shall have received a duly executed Request for Advance, which shall include a certification by a Responsible Officer that, as of the date of such Advance, Borrower shall be in pro forma compliance with the Financial Covenant set forth in Section 7.8(a) for the four consecutive fiscal quarter period most recently ended for which financial statements have been (or were required to have been) delivered, calculated on a pro forma basis after giving effect to such Advance and the use of proceeds thereof, but without netting the proceeds thereof.
(d) The proceeds of such Advance shall be used in accordance with Sections
5.14 and 6.15 hereof.
(e) Since the Closing Date, nothing has occurred which has had, or could reasonably be expected to have, a Material Adverse Effect.
5. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to the Agent, the Lenders and the Swing Line Lender, on the Closing Date and on each other date on which such representations and warranties are required to be made, as follows:
5.1 Organization; Power and Authority. Each Loan Party is a limited liability company, corporation, limited partnership or other legal entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization and is duly qualified as a foreign limited liability company or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Loan Party has the limited liability company, corporate, limited partnership or other legal entity power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver the Loan Documents to which it is a party and to perform the provisions hereof and thereof.
5.2 Authorization, Etc.. Each of the Loan Documents to which each Loan Party is a party has been duly authorized by all necessary limited liability company, corporate, limited partnership or equivalent action on the part of such Loan Party, and each such Loan Document constitutes a legal, valid and binding obligation of each Loan Party, as the case may be, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
5.3 Disclosure. As of the Closing Date, this Agreement, the other Loan Documents, the financial statements listed in Schedule 5.5 and the documents, certificates or other writings delivered to the Lenders by or on behalf of Borrower in connection with the transactions contemplated hereby and identified in Schedule 5.3 (this Agreement, the other Loan Documents and such documents, certificates or other writings and such financial statements delivered to each Purchaser being referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since December 31, 2021, there has been no change in the financial condition, operations, business or properties of Borrower or any Subsidiary except changes that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and correct lists of Borrower’s Material Subsidiaries as of the Closing Date, showing, as to each such Material Subsidiary, the name thereof, the jurisdiction of its organization, the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by Borrower and each other Subsidiary and whether such Material Subsidiary is a Subsidiary Guarantor.
(b) As of the Closing Date, all of the outstanding shares of capital stock or similar equity interests of each Material Subsidiary shown in Schedule 5.4 as being owned by Borrower and its Subsidiaries have been validly issued, are fully paid and non-assessable (in each case, to the extent applicable) and are owned by Borrower or another Subsidiary free and clear of any Lien that is prohibited by this Agreement.
(c) Each Material Subsidiary is a limited liability company, corporation, limited partnership or other legal entity duly organized, validly existing and, where applicable, in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign limited liability company, corporation, limited partnership or other legal entity and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, except for any failures to be so qualified or in good standing that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Material Subsidiary has the limited liability company, corporate, limited partnership or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact, except for any failures to be so qualified or in good standing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.5 Financial Statements; Material Liabilities. Borrower has delivered to each Lender copies of the financial statements of CIM Group, LLC and its Subsidiaries or CIM Group Management, LLC and its Subsidiaries, as applicable, listed on Schedule 5.5. All of such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of CIM Group, LLC and its Subsidiaries as of the respective dates specified in such Schedule 5.5 and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). Borrower and its Subsidiaries do not have any Material liabilities that are not disclosed in the Disclosure Documents.
5.6 Compliance with Laws, Other Instruments, Etc.. The execution, delivery and performance by each Loan Party of the Loan Documents to which such Loan Party is a party will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of Borrower or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, operating agreement, corporate charter, regulations or by-laws, shareholders agreement or any other agreement or instrument to which Borrower or any Subsidiary is bound or by which Borrower or any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to Borrower or any Subsidiary or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to Borrower or any Subsidiary.
5.7 Governmental Authorizations, Etc.. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by any Loan Party of the Loan Documents to which such Loan Party is a party.
5.8 Litigation; Observation of Statues and Orders.
(a) There are no actions, suits, investigations or proceedings pending or, to the best knowledge of Borrower, threatened against or affecting Borrower or any Subsidiary or any property of Borrower or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Neither Borrower nor any Subsidiary is (i) in violation of any order, judgment, decree or ruling of any court, any arbitrator of any kind or any Governmental Authority or (ii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which violation would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.9 Taxes. Borrower and its Subsidiaries have filed all Tax returns that are required to have been filed in any jurisdiction, and have paid all Taxes shown to be due and payable on such returns and all other Taxes and assessments payable by them, to the extent such Taxes and assessments have become due and payable and before they have become
delinquent, except where failure to file such Tax returns or pay any such Tax or assessment would not have a Material Adverse Effect, and except for any Taxes and assessments (a) the amount of which, individually or in the aggregate, is not Material or (b) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which Borrower or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. The charges, accruals and reserves on the books of Borrower and its Subsidiaries in respect of U.S. federal, state or other Taxes for all fiscal periods are adequate, except for defects therein that would not have a Material Adverse Effect. The U.S. federal income Tax liabilities of Borrower and its Subsidiaries have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended December 31, 2020, except where any defects in such determination that, individually or in the aggregate, would not have a Material Adverse Effect.
5.10 Title to Property; Leases. Borrower and its Subsidiaries have good and sufficient title to their respective Material properties, in each case free and clear of Liens prohibited by this Agreement, except for those defects in title and Liens that, individually or in the aggregate, would not have a Material Adverse Effect. All Material leases are valid and subsisting and are in full force and effect except for defects in Material leases that, individually or in the aggregate, would not have a Material Adverse Effect.
5.11 Licenses, Permits, Etc.. Borrower and its Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of others, except for failures to own or conflicts that, individually or in the aggregate, would not have a Material Adverse Effect.
5.12 Compliance with Employee Benefit Plans.
(a) Each Loan Party and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No Loan Party nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that would, individually or in the aggregate, reasonably be expected to result in the incurrence of any such liability by any Loan Party or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of any Loan Party or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Plan, other than such liabilities or Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions s The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.
(c) No Loan Party nor any of its ERISA Affiliates has incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of the last day of Borrower’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of Borrower and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.
(a) Neither Borrower nor any Subsidiary of Borrower maintains or contributes to (or has an obligation to contribute to, or any liability to) any Non-U.S. Plan.
5.13 [Reserved].
5.14 Use of Proceeds; Margin Regulations. Borrower will use the proceeds of the Advances hereunder (x) to consummate the Refinancing and (y) for (a) permitted investments, (b) the payment of fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, (c) the payment of dividends and other distributions, (d) capital contributions to any CIM Fund or Affiliate, (e) seed capital for new platforms, (f) financing for new acquisitions and (g) other working capital or general corporate purposes; provided, that (i) in no event shall the proceeds of any Advances hereunder be used to repay all or any portion of principal in respect of the Senior Notes or any Additional Senior Indebtedness, and (ii) in no event shall the proceeds of any Advances hereunder be used to repay all or any portion of principal in respect of the Specified Note to the extent that at the time of such repayment an Event of Default under Section 8.1(a), (b), (c) (solely to the extent resulting from a breach of a Financial Covenant or any Additional Provision), (g) or (h) has occurred and is continuing or would result therefrom. Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying margin stock, and no part of the proceeds of the Advances hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock in violation of Regulation U of the Federal Reserve Board (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve Borrower in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than 25% of the value of the consolidated assets of Borrower and its Subsidiaries and Borrower does not have any present intention that margin stock will constitute more than 25% of the value of such assets. As used in this Section 5.14, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
5.15 Existing Indebtedness. Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Indebtedness of Borrower and its Subsidiaries, the outstanding principal amount of which individually exceeds $2,500,000, as of the Closing Date (including descriptions of the obligors and obligees, principal amounts outstanding, any collateral therefor and any Guaranty thereof); provided that the aggregate principal amount of all outstanding Indebtedness of Borrower and its Subsidiaries as of such date that is not listed on such Schedule 5.15 does not exceed $10,000,000. As of the Closing Date, neither Borrower nor any Subsidiary is in default and no waiver of default is currently in effect, in
the payment of any principal or interest on any Indebtedness of Borrower or such Subsidiary and no event or condition exists with respect to any Indebtedness of Borrower or any Subsidiary the outstanding principal amount of which exceeds $10,000,000 that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.
5.16 Foreign Assets Control Regulations, Etc..
(a) No Loan Party nor any Controlled Entity (i) is a Blocked Person, (ii) has been notified that its name appears or may in the future appear on a State Sanctions List or (iii) is a target of Sanctions.
(b) No Loan Party nor any Controlled Entity (i) has violated, been found in violation of, or been charged or convicted under, any applicable Sanctions, Anti-Money Laundering Laws or Anti-Corruption Laws or (ii) to Borrower’s knowledge, is under investigation by any Governmental Authority for possible violation of any Sanctions, Anti-Money Laundering Laws or Anti-Corruption Laws.
(c) No part of the proceeds of the Advances hereunder:
(i) constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used any Loan Party or any Controlled Entity, directly or indirectly, (A) in connection with any investment in, or any transactions or dealings with, any Blocked Person, (B) for any purpose that would cause any Lender to be in violation of any Sanctions or (C) otherwise in violation of any Sanctions;
(ii) will be used, directly or indirectly, in violation of, or cause any Lender to be in violation of, any applicable Anti-Money Laundering Laws; or
(iii) will be used, directly or indirectly, for the purpose of making any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage, in each case which would be in violation of, or cause any Lender to be in violation of, any applicable Anti-Corruption Laws.
(d) Each Loan Party has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that Borrower and each Controlled Entity is and will continue to be in compliance with all applicable Sanctions, Anti-Money Laundering Laws and Anti-Corruption Laws.
5.17 Status under Certain Statutes. Neither Borrower nor any Subsidiary is subject to regulation under the Public Utility Holding Company Act of 2005, the ICC Termination Act of
1995, or the Federal Power Act. Neither Borrower nor any Subsidiary is or is required to register as an “investment company” under the Investment Company Act of 1940, as amended.
5.18 Solvency. On the Closing Date, and after giving effect to the consummation of the transactions contemplated by this Agreement and other Loan Documents, Borrower and its Subsidiaries (on a Consolidated basis) will be Solvent. This Agreement is being executed and delivered by Borrower to the Agent and the Lenders in good faith and in exchange for fair, equivalent consideration. The Loan Parties do not intend to nor does management of the Loan Parties believe the Loan Parties will incur debts beyond their ability to pay as they mature. The Loan Parties do not contemplate filing a petition in bankruptcy or for an arrangement or reorganization under the Bankruptcy Code or any similar law of any jurisdiction now or hereafter in effect relating to any Loan Party, nor does any Loan Party have any knowledge of any threatened bankruptcy or insolvency proceedings against a Loan Party.
5.19 EEA Financial Institution. Neither Borrower nor any Subsidiary Guarantor is an EEA Financial Institution.
5.20 Beneficial Ownership Certification. The information included in the Beneficial Ownership Certification delivered by Borrower to the Agent is true and correct in all respects as of the Closing Date or as of the date of delivery of the most recent Beneficial Ownership Certification delivered by Borrower to the Agent, as the case may be.
6. AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that so long as any Lender has any commitment to extend credit hereunder or any Obligations remain outstanding and unpaid (other than amounts in respect of indemnification, expense reimbursement, yield protection or tax gross-up, and other contingent obligations with respect to which no claim has been made) that:
6.1 Financial and Business Information. Borrower will, and will cause each of its Subsidiaries to, deliver to the Agent for distribution to each Lender the following:
(a) Quarterly Statements — within 75 days (or such shorter period as is the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each quarterly fiscal period in each fiscal year of Borrower (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of:
(i) a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in shareholders’ equity and cash flows of Borrower and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments;
(b) Annual Statements — within 120 days (or such shorter period as is the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each fiscal year of Borrower, duplicate copies of:
(i) a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, changes in shareholders’ equity and cash flows of Borrower and its Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based, in each case, other than any such qualification or exception arising from or relating to (1) an anticipated breach of a Financial Covenant under this Agreement, or (2) an upcoming maturity date under any Indebtedness) of independent public accountants of recognized national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances; provided that, if such financial statements are delivered with the qualification set forth in clause (1) above, upon the request of any Lender, Borrower will promptly arrange a telephone conference call for all Lenders for consultation by such Lenders regarding such anticipated breach and qualification;
(c) SEC and Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, notices of default, or similar document sent by Borrower or any Subsidiary to its creditors under any Material Credit Facility (excluding information sent to such creditors in the ordinary course of administration of a credit facility, such as information relating to pricing and borrowing availability) and (ii) each regular or periodic report, each registration statement (without exhibits except as expressly requested by such holder), and each prospectus and all amendments thereto filed by Borrower or any Subsidiary with the SEC;
(d) Notice of Default or Event of Default — promptly, and in any event within five (5) Business Days after a Responsible Officer becoming aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action Borrower is taking or proposes to take with respect thereto;
(e) Employee Benefits Matters — promptly, and in any event within five (5) days after a Responsible Officer becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that Borrower or an ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof;
(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by Borrower or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan;
(iii) any event, transaction or condition that could result in the incurrence of any liability by Borrower or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of Borrower or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a Material Adverse Effect; or
(iv) receipt of notice of the imposition of a Material financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans;
(f) Resignation or Replacement of Auditors — within ten (10) days following the date on which Borrower’s auditors resign or Borrower elects to change auditors, as the case may be, notification thereof, together with such further information as the Majority Lenders may request;
(g) Financial Projections — within 120 days (or such shorter period as is the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each fiscal year of Borrower, financial projections for Borrower and its Subsidiaries (on a consolidated basis) for the then-current fiscal year substantially in the form previously delivered to the Agent;
(h) Debt Rating — promptly following the occurrence thereof, notice of any change in the Debt Rating for any series of Senior Notes or Additional Senior Notes (to the extent such Debt Rating is not a public rating);
(i) Notice of Certain Changes to Beneficial Ownership Certification — With respect to any Loan Party that is a “legal entity customer” under the Beneficial Ownership Regulation, if there has been any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein since the delivery of the last Compliance Certificate pursuant to Section 6.2, then simultaneously with the delivery of the next Compliance Certificate, deliver an updated Beneficial Ownership Certifications to the Lenders; and
(j) Requested Information — with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of Borrower or any of its Subsidiaries (including actual copies of Borrower’s Form 10-Q and Form 10-K) or relating to the ability of Borrower to perform its obligations hereunder and under the other Loan Documents as from time to time may be reasonably requested by any such Lender, to the extent such other data and information can be reasonably provided. Notwithstanding anything to the contrary contained herein, Borrower shall not be required to disclose any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to any Lender is prohibited by any applicable Law or any binding agreement with a third party (so long as such agreement is not entered into in contemplation of this Agreement) or (iii) that is subject to attorney-client privilege or similar privilege which could reasonably be expected to be lost or forfeited if disclosed to the Lenders.
6.2 Officer’s Certificate. Concurrently with the delivery of, and accompanying each set of financial statements delivered pursuant to Section 6.1(a) or Section 6.1(b), deliver a certificate of a Senior Financial Officer:
(a) Covenant Compliance — setting forth (i) the information from such financial statements that is required in order to establish whether Borrower was in compliance with the requirements of Section 7 and the Additional Provisions, if any, during the quarterly or annual period covered by the financial statements then being furnished, (including with respect to each such provision that involves mathematical calculations, the information from such financial statements that is required to perform such calculations) and reasonably detailed calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Section, and the calculation of the amount, ratio or percentage then in existence and (ii) a reconciliation of the treatment of leases which would be deemed by GAAP as in effect prior to December 31, 2018 to be treated as operating leases, in form reasonably satisfactory to the Agent;
(b) Defaults and Events of Default — certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of Borrower and its Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an
Event of Default or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Borrower shall have taken or proposes to take with respect thereto; and
(c) Subsidiary Guarantors - setting forth a list of all Subsidiaries that are Subsidiary Guarantors and certifying that each Subsidiary that is required to be a Subsidiary Guarantor pursuant to Section 6.10 is a Subsidiary Guarantor, in each case, as of the date of such certificate of Senior Financial Officer.
6.3 Inspection of Property; Books and Records, Discussions. Borrower will, and will cause each of its Subsidiaries to, permit the Agent (on its own initiative or at the direction of the Majority Lenders), directly or through its authorized attorneys, accountants or other representatives (which can include one or more of the Lenders), at all reasonable times during normal business hours, upon the Agent’s reasonable advance request, to (a) visit the offices of any of the Loan Parties, discuss any Loan Party’s respective financial matters with its respective officers, and examine each Loan Party’s books, accounts, records, ledgers and assets and properties; and (b) after the occurrence and during the continuance of an Event of Default, discuss any Loan Party’s respective financial matters with its independent certified or chartered public accountants, examine any of such Loan Party’s books, reports or records held by such accountants (and Borrower hereby authorizes, and will cause each of its respective Subsidiaries to authorize, its independent certified or chartered public accountants to discuss the finances and affairs of any Loan Party with the Agent’s representatives), and at Borrower’s expense conduct full or partial audits of the Loan Parties from time to time; provided that so long as no Default or Event of Default exists and is continuing, (i) the Agent and its auditors or consultants shall not be permitted to make more than one (1) such examination under clause (a) during any fiscal year of Borrower, and (ii) Borrower shall not be required to reimburse the Agent for other than actual, reasonable and documented out-of-pocket costs of more than one (1) such examination under clause (a) during any fiscal year of Borrower.
6.4 Compliance with Laws. Without limiting Section 7.4, Borrower will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject (including ERISA, Environmental Laws, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16) and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 Insurance. Borrower will, and will cause each of its Subsidiaries to, maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated, except for any non-maintenance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.6 Maintenance of Properties. Borrower will, and will cause each of its Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times,
provided that this Section 6.6 shall not prevent Borrower or any Subsidiary from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and Borrower has concluded that such discontinuance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.7 Payment of Taxes. Borrower will, and will cause each of its Subsidiaries to, file all Tax returns required to be filed in any jurisdiction and to pay and discharge all Taxes shown to be due and payable on such returns and all other Taxes, assessments, governmental charges or levies payable by any of them, to the extent the same have become due and payable and before they have become delinquent, provided that neither Borrower nor any Subsidiary need pay any such Tax, assessment, charge or levy if (i) the amount, applicability or validity thereof is contested by Borrower or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and Borrower or a Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of Borrower or such Subsidiary or (ii) the failure to so file or non-payment of all such Taxes, assessments, charges and levies would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.8 Existence, Etc.. Subject to Section 7.2, Borrower will at all times preserve and keep its limited liability company existence in full force and effect. Subject to Sections 7.2 and 7.10, Borrower will at all times preserve and keep in full force and effect the limited liability company, corporate, limited partnership or other legal entity, as applicable, existence of each of its Subsidiaries (unless merged into Borrower or a Wholly-Owned Subsidiary) and all rights and franchises of Borrower and its Subsidiaries unless, in the good faith judgment of Borrower, the termination of or failure to preserve and keep in full force and effect such limited liability company, corporate, limited partnership or other legal entity existence, as applicable, right or franchise would not, individually or in the aggregate, have a Material Adverse Effect.
6.9 Books and Records. Borrower will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP in all material respects and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over Borrower or such Subsidiary, as the case may be, in all material respects.
6.10 Subsidiary Guarantors.
(a) Borrower (x) may at any time cause any of its Subsidiaries which is not already a Subsidiary Guarantor at such time to become a Subsidiary Guarantor by causing such Subsidiary to, and (y) will cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under the Senior Notes, the Additional Senior Indebtedness or any Material Credit Facility to concurrently therewith, in each case under clauses (x) or (y):
(i) enter into a Guarantor Supplement substantially in the form of Exhibit A attached to the form of Subsidiary Guaranty (a “Guarantor Supplement”);
(ii) deliver the following to the Agent:
(A) an executed Guarantor Supplement;
(B) a certificate signed by an authorized responsible officer of such Subsidiary containing representations and warranties on behalf of such Subsidiary to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 5.12, 5.16, 5.17 and 5.19 of this
Agreement (but with respect to such Subsidiary, such Guarantor Supplement and such Subsidiary Guaranty rather than Borrower);
(C) all documents as may be reasonably requested by the Agent to evidence the due organization, continuing existence and, where applicable, good standing of such Subsidiary and the due authorization by all requisite action on the part of such Subsidiary of the execution and delivery of the Guarantor Supplement to which it is a party and the performance by such Subsidiary of its obligations thereunder and under the Subsidiary Guaranty; provided that documents delivered under this Section 6.10(a)(ii)(C) reasonably equivalent to those provided on the Closing Date shall be acceptable to the Agent; and
(D) an opinion of counsel reasonably satisfactory to the Agent covering such matters relating to such Subsidiary, such Guarantor Supplement and such Subsidiary Guaranty as the Agent may reasonably request; provided that an opinion of counsel delivered under this Section 6.10(a)(ii)(D) reasonably equivalent to the opinion of counsel provided on the Closing Date shall be acceptable to the Agent.
(b) At the election of Borrower and by written notice to the Agent, any Subsidiary Guarantor that has provided a Subsidiary Guaranty under subparagraph (a) of this Section 6.10 may be discharged from all of its obligations and liabilities under its Subsidiary Guaranty and shall be automatically released from its obligations thereunder without the need for the execution or delivery of any other document by the Agent, provided that (i) if such Subsidiary Guarantor is a guarantor or is otherwise liable for or in respect of the Senior Notes, any Additional Senior Indebtedness or any Material Credit Facility, then such Subsidiary Guarantor has been released and discharged (or will be released and discharged concurrently with the release of such Subsidiary Guarantor under its Subsidiary Guaranty) under such Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, (ii) at the time of, and after giving effect to, such release and discharge, no Default or Event of Default shall be existing, (iii) no amount is then due and payable under such Subsidiary Guaranty, (iv) if in connection with such Subsidiary Guarantor being released and discharged under the Senior Notes, any Additional Senior Indebtedness or any Material Credit Facility, any fee or other form of consideration is given to any holder of Indebtedness under such Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, for such release, the Lenders shall receive equivalent consideration substantially concurrently therewith and (v) the Agent shall have received a certificate of a Responsible Officer certifying as to the matters set forth in clauses (i) through (iv). In the event of any such release, for purposes of Section 7.6, all Indebtedness of such Subsidiary shall be deemed to have been incurred concurrently with such release.
6.11 Eligible Revenues. Borrower will cause Eligible Revenues received directly by Borrower or a Subsidiary Guarantor to be no less than the Eligible Revenue Percentage at any time. If an Event of Default shall have occurred and be continuing, the Loan Parties will enforce their respective rights at law and in equity to receive such Eligible Revenues in accordance with the terms of the Eligible Revenue agreements and/or other management agreements to which the Loan Parties are party.
6.12 Registered Investment Adviser. Borrower and each of its Subsidiaries that is required to register as an investment adviser with the SEC under the Investment Advisers Act will maintain its status as a registered investment adviser under the Investment Advisers Act and will remain in compliance with all of the requirements of the Investment Advisers Act that are applicable to it, except to the extent failure to maintain such status would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.13 Private Debt Rating.
(a) Borrower will at all times maintain a Debt Rating (at no particular rating category) with respect to each series of Senior Notes and Additional Senior Notes from an Acceptable Rating Agency.
(b) At any time that any Debt Rating maintained pursuant to clause (a) above is not a public rating, Borrower will provide to the Agent (for distribution to the Lenders) (i) at least annually (on or before each anniversary of the Closing Date) and (ii) promptly upon any change in such Debt Rating, an updated Private Rating Letter evidencing each such Debt Rating and an updated Private Rating Rationale Report with respect to each such Debt Rating.
6.14 Most Favored Lender.
(a) If at any time the Senior Notes, any Additional Senior Indebtedness or any Material Credit Facility includes any Financial Covenant (whether included as a new provision in such new or existing Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, or by way of amendment or other modification of an existing provision or any defined term used therein) not included in this Agreement or that would be more beneficial to the Agent or the Lenders than any analogous provision included in this Agreement (any such Financial Covenant, an “Additional Provision”), then Borrower will, within five (5) Business Days after the inclusion of such Additional Provision in such Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, deliver written notice thereof to the Agent. Such notice shall be signed by a Responsible Officer and shall refer to the provisions of this Section 6.14 and shall set forth a verbatim statement of such Additional Provision and any defined terms used therein, and related explanatory calculations, as applicable. Thereupon, unless waived in writing by the Agent within five (5) Business Days after receipt of such notice by the Agent, such Additional Provision (and any related definitions) will be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, without any further action required on the part of any Person, effective as of the date that such Additional Provision became effective under such Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable. Thereafter, upon the request of the Agent, Borrower will, at its expense, enter into any additional agreement or amendment to this Agreement reasonably requested by the Agent evidencing any of the foregoing.
(b) So long as no Default or Event of Default has occurred and is continuing:
(i) if any Additional Provision incorporated into this Agreement pursuant to this Section 6.14 is amended or otherwise modified (if relevant) in each of the Senior Notes, the Additional Senior Indebtedness and each Material Credit Facility with the effect that such Additional Provision is made less restrictive or otherwise less onerous on Borrower and its Subsidiaries, then such Additional Provision will be deemed so amended in this Agreement, without any further action required on the part of any Person, effective as of the date of such amendment or modification (if relevant) in each of the Senior Notes, the Additional Senior Indebtedness and each Material Credit Facility,
(ii) if any Additional Provision incorporated into this Agreement pursuant to this Section 6.14 is removed (if relevant) from each of the Senior Notes, the Additional Senior Indebtedness and each Material Credit Facility, then such Additional Provision will be deemed removed from this Agreement, without any further action required on the part of any Person, effective as of
the date of such removal (if relevant) from each of the Senior Notes, the Additional Senior Indebtedness and each Material Credit Facility, and
(iii) if each of the Senior Notes, the Additional Senior Indebtedness and each Material Credit Facility including an Additional Provision incorporated into this Agreement pursuant to this Section 6.14 (if relevant) is terminated and no amounts are outstanding thereunder, then such Additional Provision will be deemed removed from this Agreement, without any further action required on the part of any Person, effective as of the date of such termination, provided that (x) except as provided in Section 11.10, this Agreement shall not be amended to remove any covenant, undertaking, event of default, restriction or other provision included in this Agreement (other than any Additional Provision included in this Agreement by operation of Section 6.14(a)) or to make any such provision less restrictive on Borrower and its Subsidiaries, and (y) if any creditor or agent under the Senior Notes, the Additional Senior Indebtedness or any Material Credit Facility is provided any consideration for the amendment or other modification of such Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, then the Lenders and/or the Agent shall (concurrently with the provision of such consideration to such creditor or agent) be provided with equivalent consideration on a pro rata basis, and no such amendment, modification or removal of such Additional Provision in or from this Agreement shall be effective unless and until such equivalent consideration is provided to the Lenders and/or the Agent.
For the avoidance of doubt, (1) the covenants set forth in Section 7.8 constitute Financial Covenants and (2) each of the Financial Covenants set forth in Section 7.8 as of the Closing Date (as they may be amended from time to time pursuant to Section 11.10) shall remain in this Agreement regardless of any such amendment or modification of any Additional Provision in or any such removal of any Additional Provision from the Senior Notes, any Additional Senior Indebtedness or any Material Credit Facility, or any such termination of the Senior Notes, any Additional Senior Indebtedness or any Material Credit Facility.
6.15 Use of Proceeds. Use all Revolving Credit Advances as set forth in Section 5.14. Borrower shall not use any portion of the proceeds of any such Advances (a) for the purpose of purchasing or carrying any “margin stock” (as defined in Regulation U of the Federal Reserve Board) in any manner which violates the provisions of Regulations T, U or X of said Federal Reserve Board) for any other purpose that would violate any applicable statute, rule or regulation, or (c) to fund any operations in, finance any investments or activities in, or make any payments to, a Blocked Person in violation of any Sanctions.
7. NEGATIVE COVENANTS.
Borrower covenants and agrees that so long as any Lender has any commitment to extend credit hereunder or any Obligations remain outstanding and unpaid (other than amounts in respect of indemnification, expense reimbursement, yield protection or tax gross-up, and other contingent obligations with respect to which no claim has been made) that:
7.1 Transactions with Affiliates. Borrower will not, and will not permit any Subsidiary to, enter into any Material transaction or Material group of related transactions (including the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than with any Loan Party or another Subsidiary), except
upon fair and reasonable terms that are not, taken as a whole, less favorable to Borrower or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.
7.2 Mergers, Consolidation, Etc.. Borrower will not, and will not permit any Subsidiary Guarantor to, consolidate with or merge with any other Person or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless:
(a) in the case of any such transaction involving Borrower, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of Borrower as an entirety, as the case may be, shall be a solvent corporation, limited liability company, limited partnership or other legal entity organized and existing under the laws of the United States or any state thereof (including the District of Columbia), and, if Borrower is not such corporation, limited liability company, limited partnership or other legal entity, (i) such corporation, limited liability company, limited partnership or other legal
entity, as applicable, shall have executed and delivered to the Agent its assumption of the due and punctual performance and observance of each covenant and condition of the Loan Documents to which Borrower is a party and (ii) such corporation, limited liability company, limited partnership or other legal entity, as applicable, shall have caused to be delivered to the Agent an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Agent, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; provided that an opinion substantially in the form delivered pursuant to Section 4.1(c) of this Agreement on the Closing Date shall be deemed satisfactory to the Agent;
(b) in the case of any such transaction involving a Subsidiary Guarantor, the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of such Subsidiary Guarantor as an entirety, as the case may be, shall be (i) Borrower, such Subsidiary Guarantor or another Subsidiary Guarantor; (ii) a solvent corporation, limited liability company, limited partnership or other legal entity, as applicable, (other than Borrower or another Subsidiary Guarantor) that is organized and existing under the laws of the United States or any state thereof (including the District of Columbia) and, if such Subsidiary Guarantor is not such corporation, limited liability company or limited partnership, as applicable, (1) such corporation, limited liability company, limited partnership or other legal entity, as applicable, shall have executed and delivered to the Agent its assumption of the due and punctual performance and observance of each covenant and condition of the Subsidiary Guaranty of such Subsidiary Guarantor and (2) Borrower shall have caused to be delivered to the Agent an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Agent, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; provided that an opinion substantially in the form delivered pursuant to Section 4.1(c) of this Agreement on the Closing Date shall be deemed satisfactory to the Agent; or (iii) any other Person so long as the transaction is treated as a disposition of all of the assets of such Subsidiary Guarantor for purposes of Section 7.10 and, based on such characterization, would be permitted pursuant to Section 7.10;
(c) in the case of any such merger, consolidation, acquisition, conveyance, or transfer involving Borrower, each Subsidiary Guarantor under any Subsidiary Guaranty that is outstanding at the time such transaction or each transaction in such a series of transactions occurs reaffirms its obligations under such Subsidiary Guaranty in writing at such time pursuant to documentation that is reasonably acceptable to the Agent;
(d) immediately before and immediately after giving effect to such transaction or each transaction in any such series of transactions (i) no Default or Event of Default shall have occurred and be continuing and (ii) there shall be no breach or default with respect to any Eligible Revenue agreement or other management agreement that could result in any party to such agreement being entitled to a right of termination unless such breach or default would not reasonably be expected to have a Material Adverse Effect.
No such conveyance, transfer or lease of substantially all of the assets of Borrower or any Subsidiary Guarantor shall have the effect of releasing Borrower or such Subsidiary Guarantor, as the case may be, or any successor corporation, limited liability company, limited partnership or other legal entity, as applicable, that shall theretofore have become such in the manner prescribed in this Section 7.2, from its liability under (x) this Agreement or the other Loan Documents, unless, in the case of the conveyance, transfer or lease of substantially all of the assets of a Subsidiary Guarantor, such Subsidiary Guarantor is released from its Subsidiary Guaranty in accordance with Section 6.10(b) in connection with or immediately following such conveyance, transfer or lease.
7.3 Line of Business. Borrower will not and will not permit any Subsidiary to engage in any business if, as a result, the general nature of the business in which Borrower and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which Borrower and its Subsidiaries, taken as a whole, are engaged on the Closing Date; provided that engaging in any business that is ancillary, complimentary, incidental or a natural expansion of the business engaged in on the Closing Date will be deemed not to substantially change the general nature of the business.
7.4 Economic Sanctions, Etc.. Borrower will not, and will not permit any Controlled Entity to (a) become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or (b) directly or indirectly have any investment in or engage in any dealing or transaction (including any investment, dealing or transaction involving the proceeds of the Advances) with any Person if such investment, dealing or transaction (i) would cause any Lender or any Affiliate of such Lender to be in violation of, or subject to sanctions under, any law or regulation applicable to such Lender, or (ii) is prohibited by or subject to any Sanctions.
7.5 Liens. Borrower will not and will not permit any of its Subsidiaries to create, incur, assume or permit to exist any Lien on or with respect to any property or asset (including any document or instrument in respect of goods or accounts receivable) of Borrower or any such Subsidiary, whether now owned or held or hereafter acquired, except:
(a) Liens for Taxes, assessments or other governmental charges which are not yet due and payable or that are being contested in good faith or that would not reasonably be expected to have a Material Adverse Effect;
(b) Liens incidental to the normal conduct of business of Borrower or any such Subsidiary or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other
social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business and not in connection with borrowed money;
(c) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;
(d) Liens securing Indebtedness of Borrower or any of its Subsidiaries in existence on the Closing Date and listed on Schedule 5.15 and any Liens securing the extension, renewal, or replacement of such Indebtedness, but only to the extent that the principal amount thereof outstanding immediately before giving effect to such extension, renewal or replacement is not increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or similar amounts;
(e) (i) Liens (A) existing on property at the time of its acquisition by such Loan Party or any such Subsidiary and not created in contemplation thereof; (B) on property (including any pledge of the Equity Interests of the special purpose entity owning such property) created contemporaneously with the acquisition of such property or within 365 days of such acquisition to secure the purchase price thereof; or (C) existing on property of a Person at the time such Person is consolidated with or merged into such Loan Party or any Subsidiary and not created in contemplation thereof; provided that such Liens shall attach solely to the property acquired or constructed (including any pledge of the Equity Interests of the special purpose entity owning such property), and the principal amount of the Indebtedness secured by such Lien shall not exceed the lesser of the cost of acquisition or the fair market value of such property at the time of its acquisition together with related fees and expenses for such acquisition and financing; or (ii) Liens in respect of Indebtedness refinancing any Liens described in the foregoing clauses
(A) through (C) above, provided further, that the principal amount shall not be increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or other such amount;
(f) Liens related to any cash management, investments in repurchase agreements, currency hedging, or netting arrangement in favor of any bank or financial institution;
(g) Liens created with the prior written consent of the Agent;
(h) Liens securing Indebtedness owed by any Subsidiaries of Borrower to a Loan Party or a Wholly-Owned Subsidiary;
(i) Liens securing Indebtedness of Borrower or any of its Subsidiaries so long as all Obligations of Borrower under this Agreement are concurrently secured equally and ratably with such Indebtedness;
(j) Liens securing Indebtedness that is outstanding for no more than nine (9) months following its incurrence for the purpose of financing warehoused investments; provided that (i) any such Lien shall secure only the assets of such warehoused investment (or all assets of the entity owning such warehoused investment, provided such entity only owns the warehoused investment) and any pledge of the Equity Interests of the entity owning such warehoused investment (or all assets of the entity owning the entity that owns such warehoused investment if all assets of such entity consist only of the ownership of the entity owning such warehoused investment and proceeds distributed therefrom), (ii) the aggregate outstanding amount (without duplication) of all Indebtedness (A) secured by Liens pursuant to this clause (j) plus (B) all Indebtedness of Subsidiaries outstanding pursuant to Section 7.6(b)(vi) shall not exceed $50,000,000 at any time and (iii) there shall be at least a three (3) consecutive month period in any twelve (12) consecutive month period in which the sum of (A) the principal amount of Indebtedness outstanding secured by liens
pursuant to this clause (j) plus (B) the principal amount of Indebtedness outstanding under Section 7.6(b)(vi) is zero; and
(k) other Liens securing Indebtedness of Borrower or any Subsidiary not otherwise permitted by clauses (a) through (j) above, provided that, the aggregate amount (without duplication) of (i) Indebtedness outstanding secured by Liens pursuant to this clause (k) plus (ii) all Indebtedness outstanding pursuant to Section 7.6(b)(vii), does not at any time exceed the greater of $50,000,000 and 30% of Consolidated Adjusted EBITDA (as determined on a pro forma basis for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1(a) or Section 6.1(b)); provided further, that notwithstanding the foregoing, the Borrower shall not, and shall not permit any of its Subsidiaries to, secure pursuant to this Section 7.5(k) any Indebtedness outstanding under or pursuant to any Material Credit Facility unless and until the Obligations under this Agreement (and any guaranty delivered in connection therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the Lenders in substance and in form, including an intercreditor agreement and opinions of counsel to the Borrower and/or any such Subsidiary, as the case may be, from counsel that is reasonably acceptable to the Lenders; provided further, that, for so long as there are any Advances outstanding hereunder or the to the extent the Revolving Credit Aggregate Commitment has not been terminated or otherwise reduced to zero, Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or permit to exist any Lien pursuant to this Section 7.5(k) (except to the extent that such Lien (x) refinances a Lien of the type permitted under clause (j) above and (y) complies with the requirements set forth in such clause (j) (other than subclause (iii) of the proviso thereof and the 9-month requirement in the lead-in thereof), the incurrence of which Lien under this Section 7.5(k) shall reduce utilization under such clause (j) on a dollar-for-dollar basis).
7.6 Indebtedness.
(a) Borrower will not, and will not permit any of the Subsidiary Guarantors to incur, after the Closing Date, any senior Additional Funded Indebtedness, including additional senior notes (“Additional Senior Notes” and together with all other senior Additional Funded Indebtedness, “Additional Senior Indebtedness”) unless, (x) as of the date of incurrence of such Additional Senior Indebtedness (A) the Consolidated Leverage Ratio does not exceed 3.50 to 1.00 and (B) Borrower shall be in pro forma compliance with the Financial Covenants set forth in Section 7.8 and any Additional Provisions, in each case calculated on a pro forma basis after giving effect to the incurrence of such Additional Senior Indebtedness and the use of proceeds thereof but without netting the proceeds thereof (assuming for purposes of such calculation that the then-outstanding Revolving Credit Aggregate Commitment was fully funded) determined by reference to the most recent period of four consecutive fiscal quarters for which financial statements have been (or were required to have been) delivered pursuant to Section 6.1 and (y) such Additional Senior Indebtedness shall not have a stated maturity date that is earlier than the date that is ninety (90) days after the Maturity Date hereof; provided, that, to the extent that any such Additional Senior Indebtedness is secured by a Lien on any asset or property of the Borrower and/or its Subsidiaries, such Lien shall be permitted solely to the extent incurred in reliance upon Section 7.5(i).
(b) Borrower will not permit any of its Subsidiaries that are not Subsidiary Guarantors to create, incur, assume, permit to exist or have outstanding or otherwise become liable with respect to, any Indebtedness except:
(i) Indebtedness owed by a Subsidiary existing on the Closing Date and set forth on Schedule 5.15, and the extension, renewal, or replacement of
such Indebtedness, provided that the principal amount shall not be increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or similar amounts;
(ii) Indebtedness of a Subsidiary outstanding at the time such Subsidiary becomes a Subsidiary, and any extension, renewal or replacement thereof, and only to the extent that that the principal amount thereof outstanding immediately before giving effect to such extension, renewal or refunding is not increased other than for accrued and unpaid interest, customary fees, expenses and prepayment premium or other such amounts;
(iii) Indebtedness of a Subsidiary owed to Borrower or any Wholly-Owned Subsidiary;
(iv) Indebtedness of a Subsidiary owing pursuant to Section 7.5(e);
(v) [reserved];
(vi) Indebtedness of a Subsidiary that is outstanding for no more than nine (9) months following its incurrence for the purpose of financing warehoused investments; provided that (i) the aggregate outstanding amount (without duplication) of all indebtedness (A) pursuant to this clause (b)(vi) plus (B) all Indebtedness outstanding secured by Liens pursuant to Section 7.5(j) shall not exceed $50,000,000 at any time and (ii) there shall be at least a three (3) consecutive month period in any twelve (12) consecutive month period in which the sum of (A) the principal amount of Indebtedness outstanding pursuant to this clause (b)(vi) plus (B) the principal amount of Indebtedness secured by Liens pursuant to Section 7.5(j) is zero; and
(vii) Indebtedness not otherwise permitted by clauses (b)(i) through (vi) above, provided that, the aggregate amount (without duplication) of all Indebtedness outstanding pursuant to this clause (b)(vii) does not at any time exceed the greater of $50,000,000 and 30% of Consolidated Adjusted EBITDA as determined on a pro forma basis for the most recently ended period of four consecutive fiscal quarters for which financial statements have been (or were required to have been) delivered pursuant to Section 6.1(a) or Section 6.1(b).
7.7 Restricted Payments. Borrower will not, and will not permit its Subsidiaries to, make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(a) each Subsidiary may make Restricted Payments to a Person that owns Equity Interests in such Subsidiary in accordance with the organizational documents of such Subsidiary, but in no case more than such Person’s ratable interest according to its holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) Restricted Payments in accordance with equity incentive or other benefit plans or arrangements for management or employees of each Loan Party and each Subsidiary;
(d) Restricted Payments in the form of Permitted Tax Distributions;
(e) Restricted Payments payable with respect to outstanding Preferred Stock of CCO Group, LLC; provided that (i) payments representing preferred return distributions are first applied by the holder of such Preferred Stock to make payments of accrued and unpaid interest in respect of Indebtedness owing to Borrower and (ii) redemption payments are first applied by the holder of such Preferred Stock to repay outstanding principal on such Indebtedness; and
(f) each Loan Party may make other Restricted Payments so long as (i) at the time such Restricted Payment is made and immediately after giving effect thereto, no Default or Event of Default shall exist, (ii) immediately after giving effect thereto, Borrower shall be in compliance on a pro forma basis with the Financial Covenants set forth in Section 7.8 and any Additional Provision, (iii) no Specified Equity Contribution has been made in the fiscal quarter in which such Restricted Payment is made and (iv) in respect of any other Restricted Payments made under this clause (f) during the period from the Closing Date through and including September 30, 2024, the aggregate amount of Restricted Payments made pursuant to this clause (f) during such period shall not exceed the sum of: (x) 105% of the greater of (1) Consolidated Net Income for the period from July 1, 2022 through the date of the most recently ended fiscal quarter for which financial statements shall have been (or were required to have been) delivered under Section 6.1 and (2) the result of (A) Consolidated EBITDA for such period, minus (B) Consolidated Interest Charges for such period; plus (y) 50% of the aggregate net proceeds received by Borrower after the Closing Date from the issuance of any Equity Interests of Borrower.
7.8 Financial Covenants.
(a) Consolidated Net Leverage Ratio. Borrower will not permit the ratio of (i) Consolidated Net Funded Indebtedness as of the end of any fiscal quarter of Borrower to (ii) Consolidated Adjusted EBITDA (such ratio, the “Consolidated Net Leverage Ratio”) for the period of four consecutive fiscal quarters ended on such date to be greater than 3.50 to 1.00; provided that the pro forma effect of any acquisition or divestiture consummated within such period shall be included as if such transaction had occurred at the beginning of such period. The Consolidated Net Leverage Ratio shall be tested for such period on the date of delivery of the financial statements for such period pursuant to Section 6.1; provided further, that any Event of Default arising from the breach of this Section 7.8(a), to the extent not cured in accordance with the cure rights below, shall be deemed to have occurred on the final day of such period.
Solely for the purposes of determining compliance with the Financial Covenant set forth in this Section 7.8(a) or any Additional Provision which includes a Consolidated Adjusted EBITDA component (and not for any other purpose under this Agreement), in each case, for any fiscal quarter, the amount of any cash equity contribution (which may be common equity or Preferred Stock that is not Disqualified Stock) made to Borrower on or after the first day of a fiscal quarter of Borrower, and on or prior to the date that is fifteen (15) Business Days after the day on which financial statements are required to be delivered for such fiscal quarter pursuant to Section 6.1 (the “Cure Expiration Date”), will, at the request of Borrower, be deemed to be Consolidated Adjusted EBITDA received in such fiscal quarter and shall be taken into account in the calculation of such Financial Covenant(s) for any period of four fiscal quarters of Borrower that includes such fiscal quarter (any such equity contribution so included in such calculation, a “Specified Equity Contribution”); provided, that a Specified Equity Contribution may not be (x) made in respect of more than two fiscal quarters in any four quarter period, (y) made more than three times prior to the Maturity Date and (z) greater than the amount required to cause Borrower to be in pro forma compliance with such Financial Covenant(s). Borrower may give written notice to the Agent that it will receive (or that it has received) a Specified Equity Contribution in respect of a fiscal quarter of Borrower at any time on or after the last day of such fiscal quarter and on or prior to the Cure Expiration Date in respect of the applicable testing period and, subject to the foregoing sentence, any breach (actual or prospective) of such Financial Covenant(s) shall not result in any Default or Event of Default in respect of the period of four fiscal quarters ending with such last day until the day after the Cure Expiration Date, and neither the Agent nor any Lender may exercise any rights or remedies under any this Agreement during such period,
and then an Event of Default shall be deemed to have occurred only if any such breach exists after taking into account for such determination for such period the amount of the Specified Equity Contribution, if any, made in respect of such period.
(b) Minimum Fee Earning Equity Owned and Operated. Borrower will not permit, as of the end of any fiscal quarter, the Fee Earning Equity Owned and Operated to be less than $10,616,900,000.
7.9 Amendments to Eligible Revenue Agreements. Borrower will not, and will not permit its Subsidiaries to, make, or permit the termination or making of any amendment, supplement, side letter, waiver, modification or similar agreement or arrangement in respect of any Eligible Revenue agreement or other management agreement unless, immediately after giving effect thereto, Borrower shall be in compliance on a pro forma basis with the Financial Covenants set forth in Section 7.8 and any Additional Provisions (determined by reference to the most recent fiscal quarter for which financial statements have been (or were required to have been) delivered pursuant to Section 6.1).
7.10 Sale of Assets. Borrower will not, and will not permit any Subsidiary to, make any Disposition except Permitted Dispositions; provided that, notwithstanding the foregoing, Borrower or any Subsidiary may make any Disposition so long as, (a) at the time Borrower or
such Subsidiary makes such Disposition and immediately after giving effect thereto, no Event of Default shall exist, (b) such Disposition is for fair market value, and (c) immediately after giving effect thereto, Borrower shall be in compliance on a pro forma basis with the Financial Covenants set forth in Section 7.8 and any Additional Provision (determined by reference to the most recent fiscal quarter for which financial statements have been (or were required to have been) delivered pursuant to Section 6.1).
7.11 Modification of Certain Agreements; Certain Payments.
(a) Make, permit or consent to any amendment or other modification to the constitutional documents of any Loan Party except to the extent that any such amendment or modification (i) does not violate the terms and conditions of this Agreement or any of the other Loan Documents and (ii) could not reasonably be expected to have a Material Adverse Effect.
(b) Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Senior Notes, any Additional Senior Indebtedness or any Material Credit Facility, if, after giving effect to such amendment, modification, waiver, change or consent, the obligors with respect to such Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, would not have been permitted to incur, guarantee or secure such Senior Notes, Additional Senior Indebtedness or Material Credit Facility, as applicable, pursuant to the terms hereof.
(c) Make, permit or consent to any payment of principal in respect of any Senior Notes or any Additional Senior Indebtedness to the extent that at such time an Event of Default has occurred and is continuing or would result therefrom.
(d) For so long as there are any Advances outstanding hereunder or to the extent the Revolving Credit Aggregate Commitment has not been terminated or otherwise reduced to zero, make, permit or consent to any payment of principal in respect of the Specified Note to the extent that at the time of such payment an Event of Default under Section 8.1(a), (b), (c) (solely to the extent resulting from a breach of a Financial Covenant or any Additional Provision), (g) or (h) has occurred and is continuing or would result therefrom.
7.12 Fiscal Year. Permit the fiscal year of any Loan Party to end on a day other than December 31.
8. DEFAULTS.
8.1 Events of Default. The occurrence of any of the following events shall constitute an Event of Default hereunder:
(a) Borrower defaults in the payment of any principal on any Revolving Credit when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b) Borrower defaults in the payment of any interest, fees or other amounts owing hereunder and under the other Loan Documents for more than five (5) Business Days after the same becomes due and payable; or
(c) Borrower defaults in the performance of or compliance with any term contained in Section 6.1(d), Section 7 (other than Section 7.5(k) and/or Section 7.6(b)(vii)) or any Additional Provision (subject in the case of an Additional Provision to any applicable grace period set forth in the applicable Material Credit Facility); or
(d) Borrower or any Subsidiary Guarantor defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 8.1(a), (b) and (c)) or in any other Loan Document and such default is not remedied (i) in the case of any default in the performance of or compliance with any term contained in Section 7.5(k) or Section 7.6(b)(vii), within thirty (30) days after the date of the Borrower’s delivery, pursuant to Section 6.1, of financial statements evidencing such default and (ii) in all other cases, within thirty (30) days after the earlier of (x) a Responsible Officer obtaining actual knowledge of such default and (y) Borrower receiving written notice of such default from the Agent or any Lender (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 8.1(d)); or
(e) any representation or warranty made in writing by or on behalf of Borrower or any Subsidiary Guarantor or by any officer of Borrower or such Subsidiary Guarantor in any Loan Document or any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made; or
(f) (i) Borrower or any Significant Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of, premium or make-whole amount or interest on (x) the Senior Notes or Additional Senior Indebtedness or (y) any other Indebtedness that is outstanding in an aggregate principal amount of at least $50,000,000 (or its equivalent in the relevant currency of payment) beyond any period of grace provided with respect thereto, or (ii) Borrower or any Significant Subsidiary is (1) in default in the performance of or compliance with any term of (x) the Senior Notes Purchase Agreement or the document(s) governing any Additional Senior Indebtedness or (y) any evidence of any other Indebtedness in an aggregate outstanding principal amount of at least $50,000,000 (or its equivalent in the relevant currency of payment) or of any mortgage, indenture or other agreement relating thereto, and (2) in each case, as a consequence of such default, such Indebtedness has become, or has been declared due and payable before its stated maturity or before its regularly scheduled dates of payment; or
(g) Borrower or any Significant Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or (v) is adjudicated as insolvent or to be liquidated; or
(h) a court or other Governmental Authority of competent jurisdiction enters an order appointing, without consent by Borrower or any of its Significant Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of Borrower or any of its Significant Subsidiaries, or any such petition shall be filed against Borrower or any of its Significant Subsidiaries and such petition shall not be dismissed within 60 days; or
(i) [reserved]; or
(j) one or more final non-appealable judgments or orders for the payment of money aggregating in excess of $50,000,000 (or its equivalent in the relevant currency of payment) (to the extent not paid and not covered by insurance (including, if applicable, self-insurance) or indemnities as to which the insurer or indemnitor has been notified of such judgment or order and has not denied coverage) including any such final order enforcing a binding arbitration decision, are rendered against one or more of Borrower and its Significant Subsidiaries and which judgments are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay; or
(k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified Borrower or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) there is any “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under one or more Plans, determined in accordance with Title IV of ERISA, (iv) the aggregate present value of accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current value of the assets of such Non-U.S. Plans allocable to such liabilities, (v) Borrower or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (vi) Borrower or any ERISA Affiliate withdraws from any Multiemployer Plan, (vii) Borrower or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of Borrower or any Subsidiary thereunder, (viii) Borrower or any Subsidiary fails to administer or maintain a Non-U.S. Plan in compliance with the requirements of any and all applicable laws, statutes, rules, regulations or court orders or any Non-U.S. Plan is involuntarily terminated or wound up, or (ix) Borrower or any Subsidiary becomes subject to the imposition of a financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans; and any such event or events described in clauses (i) through (ix) above, either individually or together with any other such event or events, would reasonably be expected to have a Material Adverse Effect. As used in this Section 8.1(k), the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in section 3 of ERISA; or
(l) any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the obligations hereunder and under any other Loan Document, shall cease to be in full force and effect, any Loan Party or any Person acting on behalf of a Loan Party shall contest
in any manner the validity, binding nature or enforceability of any Loan Document, or the obligations of any Loan Party under any Loan Document are not or cease to be legal, valid, binding and enforceable in accordance with the terms of such Loan Document; or
(m) a Change of Control.
8.2 Acceleration.
(a) If an Event of Default with respect to Borrower described in Section 8.1(g) or (h) (other than an Event of Default described in clause (i) of Section 8.1(g) or described in clause (vi) of Section 8.1(g) by virtue of the fact that such clause encompasses clause (i) of Section 8.1(g)) has occurred, all Advances then outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, the Majority Lenders may at any time at its or their option, by notice or notices to Borrower, declare all the Advances then outstanding to be immediately due and payable.
Upon any Advances becoming due and payable under this Section 8.2, whether automatically or by declaration, such Advances will forthwith mature and the entire unpaid principal amount of such Advances, plus (x) all accrued and unpaid interest thereon (including interest accrued thereon at the Default Rate) and (y) all other Obligations then outstanding shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived.
8.3 [Reserved].
8.4 Rights Cumulative. No delay or failure of the Agent and/or Lenders in exercising any right, power or privilege hereunder shall affect such right, power or privilege, nor shall any single or partial exercise thereof preclude any further exercise thereof, or the exercise of any other power, right or privilege. The rights of the Agent and Lenders under this Agreement are cumulative and not exclusive of any right or remedies which Lenders would otherwise have.
8.5 Waiver by Borrower of Certain Laws. To the extent permitted by applicable law, Borrower hereby agrees to waive, and does hereby absolutely and irrevocably waive and relinquish the benefit and advantage of any valuation, stay, appraisement, extension or redemption laws now existing or which may hereafter exist, which, but for this provision, might be applicable to any sale made under the judgment, order or decree of any court, on any claim for interest on the Notes. These waivers have been voluntarily given, with full knowledge of the consequences thereof.
8.6 Waiver of Defaults. No Event of Default shall be waived by the Lenders except in a writing signed by an officer of the Agent in accordance with Section 11.10; provided, that any Event of Default under Section 8.1(a) or Section 8.1(b) arising from Borrower’s failure to make a required payment on a timely basis shall be deemed to have been cured by the Agent’s acceptance of such payment prior to declaring the entire unpaid principal amount of the Indebtedness immediately due and payable, but no acceptance of a late payment shall constitute consent to future late payments or otherwise impair the Agent’s right to strict compliance by Borrower with all of the provisions of this Agreement without giving notice to, or making any demand upon, Borrower for strict compliance with this Agreement. No single or partial exercise of any right, power or privilege hereunder, nor any delay in the exercise thereof, shall preclude other or further exercise of their rights by the Agent or the Lenders. No waiver of any Event of Default shall extend to any other or further Event of Default. No forbearance on the part of the Agent or the Lenders in enforcing any of their rights shall constitute a waiver of any of their rights. Borrower expressly agrees that this
Section may not be waived or modified by the Lenders or the Agent by course of performance, estoppel or otherwise.
8.7 Set Off. Upon the occurrence and during the continuance of any Event of Default, each Lender may at any time and from time to time, without notice to Borrower but subject to the provisions of Section 9.3 (any requirement for such notice being expressly waived by Borrower), setoff and apply against any and all of the obligations of Borrower now or hereafter existing under this Agreement, whether owing to such Lender, any Affiliate of such Lender or any other Lender or the Agent, any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of Borrower and any property of Borrower from time to time in possession of such Lender, irrespective of whether or not such deposits held or indebtedness owing by such Lender may be contingent and unmatured. Promptly following any such setoff, such Lender shall give written notice to the Agent and Borrower of the occurrence thereof; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of Section 9.4 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held for the benefit of the Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender under this Section 8.8 are in addition to the other rights and remedies (including other rights of setoff) which such Lender may have.
9. PAYMENTS, RECOVERIES AND COLLECTIONS.
9.1 Payment Procedure.
(a) All payments to be made by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise provided herein, all payments made by Borrower of principal, interest or fees hereunder shall be made
without setoff or counterclaim on the date specified for payment under this Agreement and must be received by the Agent not later than 2:00 p.m. (New York City time) (or such later time on such date as agreed to by Agent) on the date such payment is required or intended to be made in Dollars in immediately available funds to the Agent at the Agent’s office located at 555 South Flower Street, 21st Floor, Los Angeles, CA 90071, for the ratable benefit of the Revolving Credit Lenders in the case of payments in respect of the Revolving Credit. Any payment received by the Agent after 2:00 p.m. (New York City time) (or such later time on such date as agreed to by Agent) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Upon receipt of each such payment, the Agent shall make prompt payment to each applicable Lender.
(b) Unless the Agent shall have been notified in writing by Borrower at least two (2) Business Days prior to the date on which any payment to be made by Borrower is due that Borrower does not intend to remit such payment, the Agent may, in its sole discretion and without obligation to do so, assume that Borrower has remitted such payment when so due and the Agent may, in reliance upon such assumption, make available to each Revolving Credit Lender on such payment date an amount equal to such Lender’s share of such assumed payment. If Borrower has not in fact remitted such payment to the Agent, each Lender shall forthwith on demand repay to the Agent the amount of such assumed payment made available or transferred to such Lender, together with the interest thereon, in respect of each day from and including the date such amount was made available by the Agent to such
Lender to the date such amount is repaid to the Agent at a rate per annum equal to the Federal Funds Effective Rate for the first two (2) Business Days that such amount remains unpaid, and thereafter at a rate of interest then applicable to such Revolving Credit Advances.
(c) Subject to the definition of “Interest Period” in Section 1.1, whenever any payment to be made hereunder shall otherwise be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest, if any, in connection with such payment.
9.2 [Reserved].
9.3 Pro-rata Recovery. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of principal of, or interest on, any of the Advances made by it, or the participations in Swing Line Advances held by it in excess of its pro rata share of payments then or thereafter obtained by all Lenders upon principal of and interest on all such Obligations, such Lender shall purchase from the other Lenders such participations in the Revolving Credit held by them as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably in accordance with the applicable Revolving Credit Percentages of the Lenders; provided, however, that if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing holder, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
9.4 Treatment of a Defaulting Lender; Reallocation of Defaulting Lender’s Fronting Exposure.
(a) The obligation of any Lender to make any Advance hereunder shall not be affected by the failure of any other Lender to make any Advance under this Agreement, and no Lender shall have any liability to Borrower or any of its Subsidiaries, the Agent, any other Lender, or any other Person for another Lender’s failure to make any loan or Advance hereunder.
(b) If any Lender shall become a Defaulting Lender, then such Defaulting Lender’s right to vote in respect of any amendment, consent or waiver of the terms of this Agreement or such other Loan Documents, or to direct or approve any action or inaction by the Agent shall be subject to the restrictions set forth in Section 11.10.
(c) Any payment of principal, interest, fees or other amounts received by the Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise) or received by the Agent from a Defaulting Lender pursuant to Section 9.6 shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Swing Line Lender hereunder; third, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fourth, if so determined by the Agent and Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances under this Agreement; fifth, to the payment of any amounts owing to the Lenders or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Swing Line Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, such payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender until such time as all Advances and Swing Line Advances are held by the Lenders pro rata in accordance with their respective Revolving Credit Percentages without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this clause (c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) Each Defaulting Lender shall be entitled to receive a Revolving Credit Facility Fee for any period during which that Lender is a Defaulting Lender only to extent allocable to the outstanding principal amount of the Revolving Credit Advances funded by it).
(e) With respect to any Revolving Credit Facility Fee not required to be paid to any Defaulting Lender pursuant to clause (d) above, Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Swing Line Advances that has been reallocated to such Non-Defaulting Lender pursuant to clause (f) below, (y) pay to each Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(f) If any Lender shall become a Defaulting Lender, then, for so long as such Lender remains a Defaulting Lender, any Fronting Exposure shall be reallocated by the Agent at the request of the Swing Line Lender among the Non-Defaulting Lenders in accordance with their respective Revolving Credit Percentages, but only to the extent that the sum of the aggregate principal amount of all Revolving Credit Advances made by each Non-Defaulting Lender, plus such Non-Defaulting Lender’s Revolving Credit Percentage of the aggregate outstanding principal amount of Swing Line Advances prior to giving effect to such reallocation plus such Non-Defaulting Lender’s Revolving Credit Percentage of the Fronting Exposure to be reallocated does not exceed such Non-Defaulting Lender’s Revolving Credit Percentage of the Revolving Credit Aggregate Commitment, and only so long as no Default or Event of Default has occurred and is continuing on the date of such reallocation.
(g) At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Agent or the Swing Line Lender (with a copy to the Agent), Borrower shall cash collateralize the Swing Line Lender’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to any cash collateral provided by such Defaulting Lender) in an amount not less than an amount determined by the Agent, the Swing Line Lender in their sole discretion, by depositing such amounts into an account controlled by the Agent.
10. AGENT.
10.1 Appointment of the Agent. Each Lender and the holder of each Note (if issued) irrevocably appoints and authorizes the Agent to act on behalf of such Lender or holder under this Agreement and the other Loan Documents and to exercise such powers hereunder and thereunder as are specifically delegated to the Agent by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto, including the
power to execute or authorize the execution of financing or similar statements or notices, and other documents. In performing its functions and duties under this Agreement, the Agent shall act solely as agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards, or relationship of agency or trust with or for, any Loan Party.
10.2 Deposit Account with the Agent or any Lender. Borrower authorizes the Agent, in the Agent’s sole discretion, upon notice to Borrower to charge Account #XXXXX54842 maintained with the Agent or such other deposit account with the Agent as Borrower may designate to the Agent in writing from time to time for the amount of any principal, interest, costs or other amounts due under this Agreement when the same become due and payable under the terms of this Agreement or the Notes.
10.3 Scope of the Agent’s Duties. The Agent shall have no duties or responsibilities except those expressly set forth herein, and shall not, by reason of this Agreement or otherwise, have a fiduciary relationship with any Lender (and no implied covenants or other obligations shall be read into this Agreement against the Agent). None of the Agent, its Affiliates nor any of their respective directors, officers, employees or agents shall be liable to any Lender for any action taken or omitted to be taken by it or them under this Agreement or any document executed pursuant hereto, or in connection herewith or therewith with the consent or at the request of the Majority Lenders (or all of the Lenders for those acts requiring consent of all of the Lenders) (except for its or their own willful misconduct or gross negligence), nor be responsible for or have any duties to ascertain, inquire into or verify (a) any recitals or warranties made by the Loan Parties or any Affiliate of the Loan Parties, or any officer thereof contained herein or therein, (b) the effectiveness, enforceability, validity or due execution of this Agreement or any document executed pursuant hereto or any security thereunder, (c) the performance by the Loan Parties of their respective obligations hereunder or thereunder, or (d) the satisfaction of any condition hereunder or thereunder, including in connection with the making of any Advance. The Agent and its Affiliates shall be entitled to rely upon any certificate, notice, document or other communication (including any cable, telegraph, telex, facsimile transmission or oral communication) believed by it to be genuine and correct and to have been sent or given by or on behalf of a proper person. The Agent may treat the payee of any Note as the holder thereof. The Agent may employ agents and may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable to the Lenders (except as to money or property received by them or their authorized agents), for the negligence or misconduct of any such agent selected by it with reasonable care or for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
10.4 Successor Agent. The Agent may resign as such at any time upon at least thirty
(30) days prior written notice to Borrower and each of the Lenders. If the Agent at any time shall resign or if the office of the Agent shall become vacant for any other reason, Majority Lenders shall, by written instrument, appoint successor agent(s) (“Successor Agent”) satisfactory to such Majority Lenders and, so long as no Default or Event of Default has occurred and is continuing, to Borrower (which approval shall not be unreasonably withheld or delayed); provided, however that any such successor Agent shall be a bank or a trust company or other financial institution which maintains an office in the United States, or a commercial bank organized under the laws of the United States or any state thereof, or any Affiliate of such bank or trust company or other financial institution which is engaged in the banking business, and shall have a combined capital and surplus of at least $500,000,000. Such Successor Agent shall thereupon become the Agent hereunder, as applicable, and the
Agent shall deliver or cause to be delivered to any successor agent such documents of transfer and assignment as such Successor Agent may reasonably request. If a Successor Agent is not so appointed or does not accept such appointment before the resigning Agent’s resignation becomes effective, the resigning Agent may appoint a temporary successor to act until such appointment by the Majority Lenders and Borrower (so long as no Default or Event of Default has occurred and is continuing), is made and accepted, or if no such temporary successor is appointed as provided above by the resigning the Agent, the Majority Lenders shall thereafter perform all of the duties of the resigning the Agent hereunder until such appointment by the Majority Lenders and, if applicable, Borrower, is made and accepted. Such Successor Agent shall succeed to all of the rights and obligations of the resigning Agent as if originally named. The resigning Agent shall duly assign, transfer and deliver to such Successor Agent all moneys at the time held by the resigning Agent hereunder after deducting therefrom its expenses for which it is entitled to be reimbursed hereunder. Upon such succession of any such Successor Agent, the resigning Agent shall be discharged from its duties and obligations, in its capacity as the Agent hereunder, except for its gross negligence or willful misconduct arising prior to its resignation hereunder, and the provisions of this Article 10 shall continue in effect for the benefit of the resigning Agent in respect of any actions taken or omitted to be taken by it while it was acting as the Agent.
10.5 Credit Decisions. Each Lender acknowledges that it has, independently of the Agent and each other Lender and based on the financial statements of Borrower and such other documents, information and investigations as it has deemed appropriate, made its own credit decision to extend credit hereunder from time to time. Each Lender also acknowledges that it will, independently of the Agent and each other Lender and based on such other documents, information and investigations as it shall deem appropriate at any time, continue to make its own credit decisions as to exercising or not exercising from time to time any rights and privileges available to it under this Agreement, any Loan Document or any other document executed pursuant hereto.
10.6 Authority of the Agent to Enforce This Agreement. Each Lender, subject to the terms and conditions of this Agreement, grants the Agent full power and authority as attorney-in-fact to institute and maintain actions, suits or proceedings for the collection and enforcement of any Obligations outstanding under this Agreement or any other Loan Document and to file such proofs of debt or other documents as may be necessary to have the claims of the Lenders allowed in any proceeding relative to any Loan Party, or their respective creditors or affecting their respective properties, and to take such other actions which the Agent considers to be necessary or desirable for the protection, collection and enforcement of the Notes, this Agreement or the other Loan Documents.
10.7 Indemnification of the Agent. The Lenders agree to indemnify the Agent-Related Persons (to the extent not reimbursed by Borrower, but without limiting any obligation of Borrower to make such reimbursement), ratably according to their respective Weighted Percentages, and hold them harmless from and against any and all claims, damages, losses, liabilities, costs or expenses of any kind or nature whatsoever (including reasonable fees and expenses of house and outside counsel) which may be imposed on, incurred by, or asserted against any Agent-Related Person in any way relating to or arising out of this Agreement, any of the other Loan Documents or the transactions contemplated hereby or any action taken or omitted by the Agent and its Affiliates under this Agreement or any of the Loan Documents; provided, however, that no Lender shall be liable for any portion of such claims, damages, losses, liabilities, costs or expenses resulting from any Agent-Related Person’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Agent-Related Persons promptly upon demand for its ratable share of any reasonable out-of-pocket expenses (including reasonable fees and
expenses of house and outside counsel) incurred by the Agent-Related Persons in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement or any of the other Loan Documents, to the extent that the Agent-Related Persons are not reimbursed for such expenses by Borrower, but without limiting the obligation of Borrower to make such reimbursement. Each Lender agrees to reimburse the Agent-Related Persons promptly upon demand for its ratable share of any amounts owing to the Agent-Related Persons by the Lenders pursuant to this Section 10.7, provided that, if the Agent-Related Persons are subsequently reimbursed by Borrower for such amounts, they shall refund to the Lenders on a pro rata basis the amount of any excess reimbursement. If the indemnity furnished to the Agent-Related Persons under this Section 10.7 shall become impaired as determined in the Agent’s reasonable judgment or the Agent shall elect in its sole discretion to have such indemnity confirmed by the Lenders (as to specific matters or otherwise), the Agent shall give notice thereof to each Lender and, until such additional indemnity is provided or such existing indemnity is confirmed, the Agent may cease, or not commence, to take any action. Any amounts paid by the Lenders hereunder to the Agent-Related Persons shall be deemed to constitute part of the Obligations hereunder.
10.8 Knowledge of Default. It is expressly understood and agreed that the Agent shall be entitled to assume that no Default or Event of Default has occurred and is continuing, unless the officers of the Agent immediately responsible for matters concerning this Agreement shall have received a written notice from a Lender or Borrower specifying such Default or Event of Default and stating that such notice is a “notice of default”. Upon receiving such a notice, the Agent shall promptly notify each Lender of such Default or Event of Default and provide each Lender with a copy of such notice and shall endeavor to provide such notice to the Lenders within three (3) Business Days (but without any liability whatsoever in the event of its failure to do so). The Agent shall also furnish the Lenders, promptly upon receipt, with copies of all other notices or other information required to be provided by Borrower hereunder.
10.9 The Agent’s Authorization; Action by Lenders. Except as otherwise expressly provided herein, whenever the Agent is authorized and empowered hereunder on behalf of the Lenders to give any approval or consent, or to make any request, or to take any other action on behalf of the Lenders (including the exercise of any right or remedy hereunder or under the other Loan Documents), the Agent shall be required to give such approval or consent, or to make such request or to take such other action only when so requested in writing by the Majority Lenders or the Lenders, as applicable hereunder. Action that may be taken by the Majority Lenders, any other specified Percentage of the Lenders or all of the Lenders, as the case may be (as provided for hereunder) may be taken (i) pursuant to a vote of the requisite percentages of the Lenders as required hereunder at a meeting (which may be held by telephone conference call), provided that the Agent exercises good faith, diligent efforts to give all of the Lenders reasonable advance notice of the meeting, or (ii) pursuant to the written consent of the requisite percentages of the Lenders as required hereunder, provided that all of the Lenders are given reasonable advance notice of the requests for such consent.
10.10 Enforcement Actions by the Agent. Except as otherwise expressly provided under this Agreement or in any of the other Loan Documents and subject to the terms hereof, the Agent will take such action, assert such rights and pursue such remedies under this Agreement and the other Loan Documents as the Majority Lenders or all of the Lenders, as the case may be (as provided for hereunder), shall direct; provided, however, that the Agent
shall not be required to act or omit to act if, in the reasonable judgment of the Agent, such action or omission may expose the Agent to personal liability for which the Agent has not been satisfactorily indemnified hereunder or is contrary to this Agreement, any of the Loan Documents or applicable law. Except as expressly provided above or elsewhere in this Agreement or the other Loan Documents, no Lender (other than the Agent, acting in its capacity as agent) shall be entitled to take any enforcement action of any kind under this Agreement or any of the other Loan Documents.
10.11 [Reserved].
10.12 The Agents in their Individual Capacities. City National Bank and its Affiliates, successors and assigns shall each have the same rights and powers hereunder as any other Lender and may exercise or refrain from exercising the same as though such Lender were not the Agent. City National Bank and its Affiliates may (without having to account therefor to any Lender) accept deposits from, lend money to, and generally engage in any kind of banking, trust, financial advisory or other business with the Loan Parties as if such Lender were not acting as the Agent hereunder, and may accept fees and other consideration therefor without having to account for the same to the Lenders.
10.13 The Agent’s Fees. Until all Obligations (other than amounts in respect of indemnification, expense reimbursement, yield protection or tax gross-up, and other contingent obligations with respect to which no claim has been made) have been repaid and discharged in full and no commitment to extend any credit hereunder is outstanding, Borrower shall pay to the Agent, as applicable, any agency or other fee(s) set forth (or to be set forth from time to time) in the applicable Fee Letter on the terms set forth therein. The agency fees referred to in this Section 10.13 shall not be refundable under any circumstances.
10.14 Documentation Agent or other Titles. Any Lender or Affiliate of a Lender identified on the facing page or signature page of this Agreement or in any amendment hereto or as designated with consent of the Agent in any assignment agreement as a Lead Arranger, Documentation Agent, Syndication Agent or any similar titles, shall not have any right, power, obligation, liability, responsibility or duty under this Agreement as a result of such title other than those applicable to all Lenders as such. Without limiting the foregoing, the Lenders and Affiliates so identified shall not have or be deemed to have any fiduciary relationship with any Lender as a result of such title. Each Lender acknowledges that it has not relied, and will not rely, on the Lenders or Affiliates so identified (nor their respective Affiliates) in deciding to enter into this Agreement or in taking or not taking action hereunder.
10.15 Obligations in respect of Lender Products and Hedging Agreements. Except as otherwise expressly set forth herein, no Lender that obtains the benefits of the provisions of Section 9.2 or of the Subsidiary Guaranty 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 to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Subsidiary Guaranty) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article 10 to the contrary, the Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Lender Products and Hedging Agreements unless the Agent has received written notice of such
Obligations, together with such supporting documentation as the Agent may request, from the applicable Lender.
10.16 No Reliance on the Agent’s Customer Identification Program.
(a) Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on the Agent to carry out such Lender’s,
Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other anti-terrorism law, including any programs involving any of the following items relating to or in connection with Borrower or any of its Subsidiaries, any of their respective Affiliates or agents, the Loan Documents or the transactions hereunder: (i) any identify verification procedures, (ii) any record keeping, (iii) any comparisons with government lists, (iv) any customer notices, or (v) any other procedures required under the CIP Regulations or such other laws.
(b) Each Lender or assignee or participant of a Lender that is not organized under the laws of the United States or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA Patriot Act and the applicable regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (ii) subject to supervision by a banking authority regulating such affiliated depository institution or foreign bank) shall deliver to the Agent the certification, or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA Patriot Act and the applicable regulations at such times as are required under the USA Patriot Act or such other applicable regulations.
10.17 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and not, for the avoidance of doubt, to or for the benefit of Borrower, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Plans with respect to such Lender’s entrance into, participation in, administration of and performance of this Agreement or the Advances and commitments hereunder,
(ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of this Agreement or the Advances and commitments hereunder,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform this Agreement and the Advances and commitments hereunder, (C) the entrance into, participation in, administration of and performance of this Agreement and the Advances and commitments hereunder satisfy the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such
Lender’s entrance into, participation in, administration of and performance of this Agreement and the Advances and commitments hereunder, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and not, for the avoidance of doubt, to or for the benefit of Borrower, that the Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of this Agreement and the Advances and commitments hereunder (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
11. MISCELLANEOUS.
11.1 [Reserved].
11.2 Consent to Jurisdiction. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. BORROWER, THE AGENT AND THE LENDERS WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11.2.
11.3 Governing Law. THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), AND THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, SHALL BE DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
11.4 Interest. Notwithstanding any other provision of this Agreement or any of the other Loan Documents, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law, shall not exceed the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds such maximum lawful rate, the outstanding amount of the Advances made hereunder shall bear interest at such maximum lawful rate (notwithstanding any period during which the stated interest rate set forth in this Agreement becomes less than such maximum lawful rate) until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Advances made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rate of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, Borrower shall pay to the Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the maximum lawful rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of the Lenders and Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the maximum lawful rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Advances made hereunder or be refunded to Borrower.
11.5 Closing Costs and Other Costs; Indemnification.
(a) Borrower shall promptly pay or reimburse the Agent and the Lead Arrangers for payment of all reasonable and documented out-of-pocket costs and expenses, including the fees and expenses of one primary firm of outside counsel, lien search fees, and required travel costs, incurred by the Agent in connection with the commitment, consummation and closing of the loans contemplated hereby, or in connection with the administration of this Agreement or the other Loan Documents (including the obtaining of legal advice regarding the rights and responsibilities of the parties hereto) or any refinancing or restructuring of the loans or Advances provided under this Agreement or the other Loan Documents, or any amendment or modification thereof requested by Borrower (which shall be limited to one primary firm of outside counsel for all Persons entitled to reimbursement or indemnification, taken as a whole, and, if reasonably necessary, a single outside local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Persons entitled to reimbursement or indemnification taken as a whole (and, in the case of an actual or perceived conflict of interest, the smallest number of additional counsel for all Persons entitled to reimbursement or indemnification required to prevent such conflict). In addition, Borrower shall pay all reasonable out-of-pocket costs and expenses, including outside attorney fees and expenses, incurred by the Agent-Related Persons and, after the occurrence and during the continuance of an Event of Default, by the Lenders, in preserving, protecting, exercising or enforcing any of the rights of the Agent or any of the Lenders against Borrower or any other Loan Party, or otherwise incurred by the Agent or the Lenders in connection with any Event of Default or the enforcement of the loans or any of the Loan Documents (whether incurred through negotiations, legal proceedings or otherwise), including such charges in any court or bankruptcy proceedings or arising out of any claim or action by any Person against the Agent or any Lender which would not have been asserted were it not for the Agent’s or such Lender’s relationship with Borrower or any Loan Party hereunder or otherwise. All such amounts required to be paid by Borrower hereunder and not paid forthwith upon demand shall bear interest from the date incurred to the date payment is received by the Agent at a per annum rate equal to the Default Rate.
(b) Borrower agrees to indemnify and hold harmless the Agent, the Lead Arrangers and each of the Lenders (and, in each case, their respective Affiliates), and their respective employees, agents, officers, directors, attorneys-in-fact and other representatives (each, an “Indemnitee”), from all loss, cost, damage, liability or expenses, including reasonable and documented outside attorneys’ fees and disbursements (which shall be limited to one primary firm of outside counsel for all Persons entitled to reimbursement or indemnification, taken as a whole, and if reasonably necessary, a single outside local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple
jurisdictions) for all Persons entitled to reimbursement or indemnification, taken as a whole (and, in the case of an actual or perceived conflict of interest, the smallest number of additional counsel for all Persons entitled to reimbursement or indemnification required to prevent such conflict)), incurred by an Indemnitee by reason of the prosecution or defense of any action or proceeding concerning any matter growing out of or connected with this Agreement or any of the Loan Documents, excluding, however, any loss, cost, damage, liability or expenses to the extent arising solely as a result of (i) the gross negligence or willful misconduct of the Indemnitee seeking indemnification under this Section 11.5(b), (ii) a material breach of this Agreement by the Indemnitee seeking to be indemnified under this Section 11.5(b), or (iii) any proceeding between or among Indemnitees that does not involve an act or omission by any of the Loan Parties (other than claims against the Agent in its capacity as such or in fulfilling its role as an Agent (but excluding its role as a Lender)).
(c) Borrower agrees to defend, indemnify and hold harmless each Indemnitee from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature (including reasonable attorneys and consultants fees, investigation and laboratory fees, environmental studies required by the Agent or any
Lender in connection with the violation of Hazardous Material Laws), court costs and litigation expenses, arising out of or related to (i) the presence, use, disposal, release or threatened release of any Hazardous Materials on, from or affecting any premises owned or occupied by any Loan Party in violation of or the non-compliance with applicable Hazardous Material Laws, (ii) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to such Hazardous Materials, (iii) any lawsuit or other proceeding brought or threatened, settlement reached or governmental order or decree relating to such Hazardous Materials, and/or (iv) complying or coming into compliance with all Hazardous Material Laws (including the cost of any remediation or monitoring required in connection therewith) or any other Requirement of Law; provided, however, that Borrower shall have no obligations under this Section 11.5(c) with respect to claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses to the extent arising out of the gross negligence or willful misconduct of the Indemnitee. The obligations of Borrower under this Section 11.5(c) shall be in addition to any and all other obligations and liabilities Borrower may have to the Agent or any of the Lenders at common law or pursuant to any other agreement.
11.6 Notices.
(a) Except as expressly provided otherwise in this Agreement (and except as provided in clause (b) below), all notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing and shall be given by personal delivery, by mail, by reputable overnight courier, by facsimile or by electronic communication (including email) addressed or delivered to it at its address, facsimile number or e-mail address set forth on Annex IV or at such other address, facsimile number or e-mail address as may be designated by such party in a notice to the other parties that complies as to delivery with the terms of this Section 11.6 or, except as to payment demands or other notices to or communications with Borrower (as to which notices will be given by one of the methods specified above), posted to an E-System set up by or at the direction of the Agent (as set forth below). Any notice, if personally delivered or if mailed and properly addressed with postage prepaid and sent by registered or certified mail, shall be deemed given when received or when delivery is refused; any notice, if given to a reputable overnight courier and properly addressed, shall be deemed given two (2) Business Days after the date on which it was sent, unless it is actually received sooner by the named addressee; and any notice, if transmitted by facsimile, shall be deemed given when received.
The Agent may, but, except as specifically provided herein, shall not be required to, take any action on the basis of any notice given to it by telephone, but the giver of any such notice shall promptly confirm such notice in writing or by facsimile, and such notice will not be deemed to have been received until such confirmation is deemed received in accordance with the provisions of this Section set forth above. If such telephonic notice conflicts with any such confirmation, the terms of such telephonic notice shall control. Any notice given by the Agent or any Lender to Borrower shall be deemed to be a notice to all of the Loan Parties.
(b) Notices and other communications provided to the Agent and the Lenders party hereto under this Agreement or any other Loan Document may be delivered or furnished by electronic communication (including email and Internet or intranet websites) pursuant to procedures approved by the Agent. Notices and other communications provided to Borrower under this Agreement or any other Loan Document may be delivered or furnished by electronic
communication (including email) to the email addresses set forth for Borrower in Annex IV pursuant to Section 11.6(a). The Agent or Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications (including email and any E-System) pursuant to procedures approved by it. Unless otherwise agreed to in a writing by and among the parties to a particular communication, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, return email, or other written acknowledgment) and (ii) notices and other communications posted to any E-System shall be deemed received upon the deemed receipt by the intended recipient at its email address as described in the foregoing clause (i) of notification that such notice or other communication is available and identifying the website address therefore.
11.7 [Reserved].
11.8 Successors and Assigns; Participations; Assignments.
(a) This Agreement shall be binding upon and shall inure to the benefit of Borrower and the Lenders and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Borrower of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Lenders.
(c) No Lender may at any time assign or grant participations in such Lender’s rights and obligations hereunder and under the other Loan Documents except by way of (i) an assignment to any Eligible Assignee in accordance with clause (d) of this Section 11.8, (ii) a participation in accordance with the provisions of clause (e) of this Section 11.8, or (iii) a pledge or assignment of a security interest subject to the restrictions of clause (g) of this Section 11.8 (and any other attempted assignment or transfer by any Lender shall be deemed to be null and void).
(d) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be made on a pro rata basis, and shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit; provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit be less than $5,000,000;
(ii) the parties to any assignment shall execute and deliver to the Agent an Assignment Agreement substantially (as determined by the Agent) in the form attached hereto as Exhibit J (with appropriate insertions acceptable to the Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement; and
(iii) the assigning Lender shall deliver to Borrower and the Agent a completed Qualified Purchaser Certificate executed by the assignee five (5) Business Days prior to the date of the proposed assignment. So long as no Event of Default under Section 8.1(a), (b), (g) or (h) has occurred and is continuing, if Borrower notifies the Agent in writing at least two (2) Business Days prior to the proposed date of assignment that Borrower in good faith believes that such assignee is not a Qualified Purchaser, then such Lender may not assign all or any part of such Lender’s rights or obligations hereunder to such party.
Until the Assignment Agreement becomes effective in accordance with its terms and is recorded in the Register maintained by the Agent under clause (h) of this Section 11.8, and the Agent has confirmed that the assignment satisfies the requirements of this Section 11.8, Borrower and the Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 11.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including the right to receive fees payable hereunder in respect of the period following such assignment) and the assigning Lender shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents.
Upon request, Borrower shall execute and deliver to the Agent, new Note(s) payable to the assignee in an amount equal to the amount assigned to the assigning Lender pursuant to such Assignment Agreement, and with respect to the portion of the Obligations retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. The Agent, the Lenders and Borrower acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning lender prior to such assignment and shall not effect or constitute a novation or discharge of the Obligations evidenced by such prior Note, and each such new Note may contain a provision confirming such agreement.
(e) Borrower and the Agent acknowledge that each of the Lenders may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Lender’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Person (other than (w) a Person that is not a Qualified Purchaser, (x) a Disqualified Institution, (y) a natural person or (z) Borrower or any of Borrower’s Affiliates or Subsidiaries); provided that any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Lender shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof;
(iii) such Lender shall retain the sole right and responsibility to enforce the obligations of the Loan Parties relating to the Notes and the other Loan Documents, including the right to proceed against any Subsidiary Guarantors, or
cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (unless such participant is an Affiliate of such Lender), except for those matters requiring the consent of each of the Lenders or each of the affected Lenders under Section 11.10(b)(i) - (iii) (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender and the Loan Parties, the Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Lender hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Lender or any Loan Party; provided, however that the participant may have rights against such Lender in respect of such participation as may be set forth in the applicable participation agreement and all amounts payable by the Loan Parties hereunder shall be determined as if such Lender had not sold such participation. Each such participant shall be entitled to the benefits of Article 3 of this Agreement to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (d) of this Section 11.8, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 3 than the issuing Lender would have been entitled to receive in respect of the amount of the participation transferred by such issuing Lender to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 8.6 hereof as though it were a Lender, provided that such participant agrees to be subject to Section 9.3 as though it were a Lender; and
(iv) each participant shall provide the relevant tax form required under
Section 11.13.
In addition, with respect to any participation, the Lender granting the participation shall deliver to Borrower and the Agent a completed Qualified Purchaser Certificate executed by the proposed participant five (5) Business Days prior to the date of the proposed participation. So long as no Event of Default has occurred that remains uncured or unwaived, if Borrower notifies the Agent in writing at least two (2) Business Days prior to the proposed date of participation that Borrower in good faith believes that such proposed participant is not a Qualified Purchaser, then such Lender may not participate all or any part of such Lender’s rights or obligations hereunder to such party.
(f) Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Revolving Credit or other Obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except (i) Borrower or (ii) to the extent that such disclosure is necessary to establish that such commitment, loan 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 Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(g) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Lender as a party hereto.
(h) Borrower hereby designates the Agent, and the Agent agrees to serve, as Borrower’s non-fiduciary agent solely for purposes of this Section 11.8(h) to maintain at its principal office in the United States a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by Borrower or any Lender (but only with respect to any entry relating to such Lender’s Percentages and the principal amounts owing to such Lender) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(i) Borrower authorizes each Lender to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Lender’s possession concerning the Loan Parties which has been delivered to such Lender pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 11.11 or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
11.9 Counterparts. This Agreement may be executed in several counterparts, and each executed copy shall constitute an original instrument, but such counterparts shall together constitute but one and the same instrument.
11.10 Amendment and Waiver.
(a) Except as otherwise set forth in this Section 11.10, no amendment or waiver of any provision of this Agreement or any other Loan Document, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Agent and the Majority Lenders (or by the Agent at the written request of the Majority Lenders) or, if this Agreement expressly so requires with respect to the subject matter thereof, by all Lenders (and, with respect to any amendments to this Agreement or the other Loan Documents, by any Loan Party or the Subsidiary Guarantors that are signatories thereto), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. All references in this Agreement to “Lenders” or “the Lenders” shall refer to all Lenders, unless expressly stated to refer to Majority Lenders (or the like).
(b) Notwithstanding anything to the contrary herein:
(i) no amendment, waiver or consent shall extend, or increase the stated amount of, any Lender’s commitment hereunder without such Lender’s consent;
(ii) no amendment, waiver or consent shall, unless in writing and signed by the Lender or Lenders holding Obligations directly affected thereby, do any of the following:
(A) forgive or reduce the principal of, or interest on, any outstanding Obligations or any Fees or other amounts payable hereunder;
(B) postpone, extend or delay any date fixed for any payment of principal of, or interest on, any outstanding Obligations or any Fees or other amounts payable hereunder (including, for the avoidance of doubt, the provisions of Section 2.10(b)); and
(C) change any of the provisions of this Section 11.10 or the definitions of “Majority Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder;
(iii) no amendment, waiver or consent shall, unless in writing and signed by all Lenders, do any of the following:
(A) except as expressly permitted hereunder or under the other Loan Documents, release any material guaranty provided by any Person in favor of the Agent and the Lenders, provided however that the Agent shall be entitled, without notice to or any further action or consent of the Lenders, to release any guaranty to the extent expressly permitted in this Agreement or any of the other Loan Documents (whether in connection with the sale, transfer or other disposition of the applicable Subsidiary Guarantor or otherwise);
(B) amend, modify or waive any condition precedent to any Advance set forth Article 4 (including, without limitation, the waiver of an existing Default or Event of Default required to be waived in order for such Advance to be made); or
(C) modify the pro rata sharing provisions of Section 9.3;
(iv) any amendment, waiver or consent that will (A) reduce the principal of, or interest on, the Swing Line Note, (B) postpone any date fixed for any payment of principal of, or interest on, the Swing Line Note or (C) otherwise affect the rights and duties of the Swing Line Lender under this Agreement or any other Loan Document, shall require the written concurrence of the Swing Line Lender; and
(v) any amendment, waiver, or consent that will affect the rights or duties of the Agent (in its capacity as Agent) under this Agreement or any other Loan Document, shall require the written concurrence of the Agent.
(c) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove of any amendment, consent, waiver or any other modification to any Loan Document (and all amendments, consents, waivers and other modifications may be effected without the consent of the Defaulting Lenders) and such Defaulting Lender’s Revolving Credit Commitment Amount and Revolving Credit Percentage of any outstanding Advances shall be excluded from the numerator and denominator in making any determination of the Majority Lenders or any other determination under any Loan Document of the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, except that the foregoing shall not permit, in each case without such Defaulting Lender’s consent, (i) an
increase in such Defaulting Lender’s stated commitment amounts, (ii) the waiver, forgiveness or reduction of the principal amount of any Obligations owing to such Defaulting Lender (unless all other Lenders affected thereby are treated similarly), (iii) the extension of the final maturity date(s) of such Defaulting Lender’s portion of any of the Obligations or the extension of any commitment to extend credit of such Defaulting Lender, or (iv) any other modification which requires the consent of all Lenders or the Lender(s) affected thereby which affects such Defaulting Lender more adversely than the other affected Lenders generally (other than a modification which results in a reduction of such Defaulting Lender’s Percentage of the Revolving Credit Aggregate Commitment or repayment of any amounts owing to such Defaulting Lender on a non-pro-rata basis).
(d) The Agent shall, upon the written request of Borrower, and the Lenders hereby irrevocably authorize the Agent to, execute and deliver to the Loan Parties such documents as may be necessary to evidence the release of any Person from its obligations under the Loan Documents (including the Subsidiary Guaranty) if all of the Equity Interests of such Person that were held by a Loan Party are sold or otherwise transferred to any transferee other than Borrower or a Subsidiary of Borrower as part of or in connection with any disposition
(whether by sale, by merger or by any other form of transaction) permitted in accordance with the terms of this Agreement.
(e) Notwithstanding anything to the contrary herein the Agent may amend, modify or supplement this Agreement or any of the other Loan Documents (i) without the consent of Borrower or any Lender, to make Conforming Changes in accordance with Section 2.6)(f) or 3.11, as applicable, (ii) with the consent of Borrower only, to cure any ambiguity, omission, mistake, defect or inconsistency, (iii) with the consent of Borrower, the Swing Line Lender and the Extending Lenders only, to give effect to any Extension in accordance with Section 2.12 and (iv) with the consent of Borrower, the Swing Line Lender and the Extending Lenders only, to give effect to any Commitment Increase in accordance with Section 2.13.
(f) Notwithstanding the foregoing, no amendment and restatement of this Agreement which is in all other respects approved by the Lenders in accordance with this Section 11.10 shall require the consent or approval of any Lender (i) which immediately after giving effect to such amendment and restatement, shall have no commitment or other obligation to maintain or extend credit under this Agreement (as so amended and restated), and (ii) which, substantially contemporaneously with the effectiveness of such amendment and restatement, shall have received payment in full of all Obligations (other than amounts in respect of indemnification, expense reimbursement, yield protection or tax gross-up and other contingent obligations with respect to which no claim has been made) owing to such Lender under the Loan Documents (other than any Obligations owing to such Lender in connection with Lender Products or under any Hedging Agreement). From and after the effectiveness of any such amendment and restatement, any such Lender shall be deemed to no longer be a “Lender” hereunder or a party hereto, except that any such Lender shall retain the benefits of indemnification provisions hereof which, by the terms hereof would survive the termination of this Agreement.
(g) [Reserved].
(h) The Agent and the Lenders hereby irrevocably agree that any Person shall be automatically released from its obligations under the Loan Documents (including the Subsidiary Guaranty) if all of the Equity Interests of such Person that were held by a Loan Party are sold or otherwise transferred to any transferee other than Borrower or a Subsidiary of Borrower as part of or in connection with any disposition (whether by sale, by merger or any other form of transaction) permitted by this Agreement.
11.11 Confidentiality.
(a) Each Lender agrees that it will keep confidential (and direct and cause its officers, directors, employees, agents, representatives, legal counsel, accountants, auditors and other service providers (each, a “Representative”) to keep confidential), and not disclose without the prior consent of Borrower, any information relating to Borrower or any of its Affiliates (including its Subsidiaries and the CIM Funds) that it receives from or on behalf of Borrower or any of Borrower’s Affiliates, together with analyses, compilations, studies or other documents prepared by such Lender or its Representatives which contain or otherwise reflect such information or its review of Borrower or otherwise concerning the credit facility evidenced by the Loan Documents (collectively, the “Information”).
(b) Notwithstanding the provisions of Section 11.11(a), the Agent and each Lender may disclose any such Information to (i) any of the other Lenders, (ii) such of its Representatives as need to know such Information in connection with the preparation, execution, delivery, administration, performance, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents, or legal advice in respect thereof (provided that such Lender shall inform each such Person of the confidential nature of such Information and direct and cause such Person to treat the Information confidentially), (iii) any federal, state or foreign government agency in the exercise of its general regulatory or supervisory authority over the Agent or any Lender, whether as part of any audit or examination or otherwise, without any restriction, (iv) any Person and in any proceeding to the extent required by any Requirement of Law or by any subpoena or similar legal process or otherwise necessary in the judgment of the Agent or such Lender to protect its interests in connection with any claim or dispute in which it is involved (provided that (A) prior to such disclosure, if legally permissible, the Agent or such Lender, to the extent permitted by law, informs Borrower of such request and allows Borrower to contest such production, or seek an appropriate protective order, other appropriate remedy or reliable assurance that the Information will be accorded confidential treatment, and (B) in the event that such protective order, other appropriate remedy or reliable assurance of confidential treatment is not obtained, the Agent or such Lender shall furnish only that portion of the Information which it is advised by its counsel is legally required to be disclosed and shall exercise diligent efforts, at Borrower’s sole expense, to obtain reasonable assurance that confidential treatment will be accorded to any Information so released), and (v) to any prospective assignee or participant in accordance with Section 11.8(i) (provided that (A) prior to such disclosure each such prospective assignee or participant shall execute and deliver to Borrower a confidentiality agreement in favor of Borrower substantially in the form of this Section 11.11 and (B) no Information shall be disclosed to any Person that constitutes a Disqualified Institution at the time of such disclosure without Borrower’s prior written consent).
(c) The provisions of Section 11.11(a) shall not apply to any Information to the extent that such Information (i) has become generally available to the public other than as a result of a breach of this Section 11.11, (ii) has been lawfully obtained by the Agent or a Lender on a non-confidential basis from a third party not known to be in breach of a duty (legal, fiduciary, contractual or otherwise) of confidentiality to Borrower or any of its Affiliates, (iii) is or was available to the Agent or a Lender on a non-confidential basis from such a source prior to its disclosure by Borrower or any of its Affiliates, or (iv) is or was developed independently by the Agent, a Lender or one of their Representatives without use of the Information.
(d) The Agent and each Lender agrees that (i) it shall use, and shall direct and cause its Representatives to use, any Information solely for purposes of the preparation, execution, delivery, administration, performance, modification, amendment or enforcement
(whether through negotiations, legal proceedings as otherwise) of this Agreement, the other Loan Documents and any Hedging Agreement to which the Agent or any Lender is a party, or legal advice in respect of its rights and responsibilities hereunder and thereunder or for other valid internal business purposes (provided that the Information may not be used by any such Person for the purpose of providing services to a customer other than Borrower or its Affiliates), (ii) it shall be responsible for any breach of this Section 11.11 by its respective Representatives and (iii) money damages may not be a sufficient remedy for breach of this Section 11.11 and that, in addition to all other remedies available at law or in equity, Borrower shall be entitled to seek equitable relief, including injunction and specific performance, without proof of actual damages, and shall not be required to post bond or other security as a condition of obtaining such relief.
11.12 Substitution or Removal of Lenders.
(a) With respect to any Lender (i) whose obligation to make Term SOFR Advances has been suspended pursuant to Section 3.3 or Section 3.4,
(i) that has demanded compensation under Section 3.5, Section 3.6 or
Section 3.10,
(ii) that has become a Defaulting Lender, or (iv) that has failed to
consent to a requested amendment, waiver or modification to any Loan Document as to which the Majority Lenders have already consented (in each case, an “Affected Lender”), then the Agent or Borrower may, at Borrower’s sole expense, require the Affected Lender to sell and assign all of its interests, rights and obligations under this Agreement, including its Revolving Credit Commitment Amount, to one or more assignees (which may be one or more of the other Lenders) (such assignee(s) shall be referred to herein as the “Purchasing Lender” or “Purchasing Lenders”) within two (2) Business Days after receiving notice from the Agent or Borrower requiring it to do so, for an aggregate price equal to the sum of the portion of all Advances made by it, interest and fees accrued for its account through but excluding the date of such payment, and all other amounts payable to it hereunder, from the Purchasing Lenders (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts, including, if demanded by the Affected Lender, the amount of any compensation that is due to the Affected Lender under Sections 3.1, 3.5, 3.6 and 3.10 to but excluding said date), payable in cash in immediately available funds. The Affected Lender, as assignor, each such Purchasing Lender, as assignee, Borrower and the Agent shall enter into an Assignment Agreement pursuant to Section 11.8, whereupon each such Purchasing Lender shall be a Lender party to this Agreement, shall be deemed to be an assignee hereunder and shall have all the rights and obligations of a Lender with a Revolving Credit Percentage equal to its ratable share of the then applicable Revolving Credit Aggregate Commitment of the Affected Lender; provided, however, that if the Affected Lender does not execute such Assignment Agreement within two (2) Business Days of its receipt thereof, the Agent may execute the Assignment Agreement as the Affected Lender’s attorney-in-fact. Each of the Lenders hereby irrevocably constitutes and appoints the Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority, in the name of such Lender or in its own name, to execute and deliver the Assignment Agreement while such Lender is an Affected Lender hereunder (such power of attorney to be deemed coupled with an interest and irrevocable). In connection with any assignment pursuant to this
Section 11.12, Borrower or the Purchasing Lender shall pay to the Agent the administrative fee for processing such assignment referred to in Section 11.8.
(b) If any Lender is an Affected Lender of the type described in clauses (ii),
(iii) or (iv) of Section 11.12(a) (any such Lender, a “Non-Compliant Lender”), Borrower may, with the prior written consent of the Agent (not to be unreasonably withheld, delayed or conditioned), and notwithstanding Section 9.3 of this Agreement or any other provision requiring pro rata payments to the Lenders, elect to (i) reduce the Revolving Credit Aggregate Commitment by an amount equal to the Non-Compliant Lender’s Percentage of such Revolving Credit Aggregate Commitment and (ii) repay such Non-Compliant Lender an amount equal the principal amount of all Advances owing to it, all interest and fees accrued for its account through but excluding the date of such repayment, and all other amounts payable to it hereunder (including, if demanded by the Non-Compliant Lender, the amount of any compensation that is due to such Non-Compliant Lender under Sections 3.1, 3.5, 3.6 and 3.10 to but excluding said date), payable in cash in immediately available funds, so long as, after giving effect to the termination of such Revolving Credit Commitment Amount and the repayments described in this clause (b), any Fronting Exposure of such Non-Compliant Lender shall be reallocated among the Lenders that are not Non-Compliant Lenders in accordance with their respective Percentages, but only to the extent that the sum of the aggregate principal amount of all Revolving Credit Advances made by each such Lender, plus such Lender’s Percentage of the aggregate outstanding principal amount of Swing Line Advances prior to giving effect to such reallocation plus such Lender’s Percentage of the Fronting Exposure to be reallocated does not exceed such Lender’s Percentage of the Revolving Credit Aggregate Commitment, and with respect to any portion of the Fronting Exposure that may not be reallocated, Borrower shall deliver to the Agent, for the benefit of the Swing Line Lender, cash collateral or other security satisfactory to the Agent with respect any such remaining Fronting Exposure.
11.13 Withholding Taxes.
(a) Any Lender that is entitled to an exemption from or reduction of withholding Taxes with respect to payments made under any Loan Document shall deliver to Borrower and the Agent, at the time or times reasonably requested by Borrower or the Agent, such properly completed and executed documentation reasonably requested by Borrower or the 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 Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or the Agent as will enable Borrower or the 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 Sections 11.13(a)(i), (ii) and (iv) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
Person, Without limiting the generality of the foregoing, in the event that Borrower is a U.S.
(i) any Lender that is a U.S. Person shall deliver to Borrower and the 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 Borrower or the Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(ii) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the 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 Borrower or the Agent), whichever of the following is applicable:
(A) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Taxes 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-E establishing an exemption from, or reduction of, U.S. federal withholding Taxes pursuant to the “business profits” or “other income” article of such tax treaty;
(B) executed originals of IRS Form W-8ECI;
(C) 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 K-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 a 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) executed originals of IRS Form W-8BEN-E; or
(D) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit K-2 or Exhibit K-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 K-4 on behalf of each such direct and indirect partner;
(iii) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and the 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 Borrower or the 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 Borrower or the Agent to determine the withholding or deduction required to be made; and
(iv) if a payment made to the Agent or a Lender under any Loan Document would be subject to U.S. federal withholding Taxes imposed by FATCA if the Agent or 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), the Agent or such Lender shall deliver to Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or the 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 Borrower or the Agent as may be necessary for Borrower and the Agent to comply with their obligations under FATCA and to determine that the Agent or such Lender has complied with the Agent’s or such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(b) 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 Borrower and the Agent in writing of its legal inability to do so.
(c) Promptly upon notice from the Agent of any determination by the Internal Revenue Service that any payments previously made to such Lender hereunder were subject to United States income tax withholding when made (or subject to withholding at a higher rate than that applied to such payments), such Lender shall pay to the Agent the excess of the aggregate amount required to be withheld from such payments over the aggregate amount (if any) actually withheld by the Agent or Borrower, provided that, following any such payment, such Lender shall retain all of its rights and remedies against Borrower with respect thereto.
For purposes of this Section 11.13, the term “applicable law” includes FATCA.
11.14 WAIVER OF JURY TRIAL. THE LENDERS, THE AGENT AND BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM 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 ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTION OF ANY OF THEM. NEITHER THE LENDERS, THE AGENT NOR BORROWER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH 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. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE LENDERS AND THE AGENT OR BORROWER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
11.15 USA Patriot Act and Beneficial Ownership Notice. Pursuant to Section 326 of the USA Patriot Act and the Beneficial Ownership Regulation, the Agent and the Lenders hereby notify the Loan Parties that if they or any of their Subsidiaries open an account, including any loan, deposit account, treasury management account, or other extension of credit with the Agent or any Lender, the Agent or the applicable Lender will request the applicable Person’s name, tax identification number, business address and other information necessary to identify such Person (and may request such Person’s organizational documents or other identifying documents) to the extent necessary for the Agent and the applicable Lender to comply with the USA Patriot Act and the Beneficial Ownership Regulation.
11.16 Complete Agreement; Conflicts. This Agreement, the Notes (if issued), the other Loan Documents and any Requests for Revolving Credit Advance and Requests for Swing Line Advance contain the entire agreement of the parties hereto, superseding all prior agreements, discussions and understandings relating to the subject matter hereof and thereof, and none of the parties shall be bound by anything not expressed in writing. In the event of any conflict between the terms of this Agreement and the terms of other Loan Documents, the terms of this Agreement shall govern.
11.17 Severability. In case any one or more of the obligations of the Loan Parties under this Agreement, the Notes or any of the other Loan Documents shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining obligations of the Loan Parties in such jurisdiction shall not in any way be affected or impaired thereby, and the invalidity, illegality or unenforceability of any one or more of the
obligations of the Loan Parties under this Agreement, the Notes or any of the other Loan Documents in one jurisdiction shall not affect the validity, legality or enforceability of such obligations of the Loan Parties in any other jurisdiction.
11.18 Table of Contents and Headings. The table of contents and the headings of the various subdivisions hereof are for convenience of reference only and shall in no way modify or affect any of the terms or provisions hereof.
11.19 Construction of Certain Provisions. If any provision of this Agreement or any of the Loan Documents refers to any action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person, whether or not expressly specified in such provision.
11.20 Independence of Covenants. Each covenant hereunder shall be given independent effect (subject to any exceptions stated in such covenant) so that if a particular action or condition is not permitted by any such covenant (taking into account any such stated exception), the fact that it would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default.
11.21 Electronic Transmissions.
(a) Each of the Agent, the Lenders, the Loan Parties, and each of their respective Affiliates is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions in connection with any Loan Document and the transactions contemplated therein. Borrower and each other Loan Party hereby acknowledges and agrees that the use of Electronic Transmissions is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse, and each indicates it assumes and accepts such risks by hereby authorizing the transmission of Electronic Transmissions.
(b) All uses of an E-System shall be governed by and subject to, in addition to Section 11.6 and this Section 11.21, separate terms and conditions posted or referenced in such E-System and related contractual obligations executed by the Agent, the Lenders and the Loan Parties in connection with the use of such E-System.
(c) All E-Systems and Electronic Transmissions shall be provided “as is” and “as available”. None of the Agent or any of its Affiliates, nor Borrower or any of its respective Affiliates warrants the accuracy, adequacy or completeness of any E-Systems or Electronic Transmission, and each disclaims all liability for errors or omissions therein. No warranty of any kind is made by the Agent or any of its Affiliates, or by Borrower or any of its respective Affiliates, in connection with any E-System or Electronic Transmission, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects. The Agent, the Lenders, Borrower and its Subsidiaries agree that the Agent has no responsibility for maintaining or providing any equipment, software, services or any testing required in connection with any Electronic Transmission or otherwise required for any E-System. The Agent and the Lenders agree that Borrower has no responsibility for maintaining or providing any equipment, software, services or any testing required in connection with any Electronic Transmission or otherwise required for any E-System.
11.22 Reliance on and Survival of Provisions. All of the terms, covenants, agreements, representations and warranties of the Loan Parties set forth in this Agreement or in any of the other Loan Documents, or in any certificate, report, financial statement or other document furnished by or on behalf of any Loan Party in connection with this Agreement or any of the other Loan Documents, shall be deemed to have been relied upon by the Agent and the Lenders notwithstanding any investigation heretofore or hereafter made by the Agent or
any Lender or on the Agent’s or such Lender’s behalf, and those covenants and agreements of Borrower and the Lenders, as applicable, set forth in Sections 3.10, 10.7, 11.5, 11.11 and 11.22 (together with any other indemnities of any Loan Party or Lender contained elsewhere in this Agreement or in any of the other Loan Documents) shall survive the repayment in full of the Obligations and the termination of this Agreement and the other Loan Documents, including any commitment to extend credit thereunder.
11.23 Acknowledgment and Consent to Bail-In of Affected 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 Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable 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 the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if
applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such Affected Financial Institution, its parent institution, 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 the applicable Resolution Authority.
11.24 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedging Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 11.24, the following terms have the following
meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined
under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Covered Entity” means any of the following:
(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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