UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): July 1, 2019
BERRY GLOBAL GROUP, INC.
(Exact name of registrant as specified in charter)
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Delaware
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1-35672
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20-5234618
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(State of incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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101 Oakley Street
Evansville, Indiana 47710
(Address of principal executive offices / Zip Code)
(812) 424-2904
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act.
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, $0.01 par value per share
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BERY
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New York Stock Exchange
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2
of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to
Section 13(a) of the Exchange Act. ☐
Introductory Note
On July 1, 2019, Berry Global Group, Inc. (the “Company”) completed its previously announced acquisition (the “Acquisition”) of all of the outstanding shares of RPC Group Plc, a public company
incorporated in England and Wales (“RPC”).
| Item 1.01 |
Entry into a Material Definitive Agreement.
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Release of Escrow Proceeds
On June 5, 2019, Berry Global Escrow Corporation (the “Escrow Issuer”), a wholly owned indirect subsidiary of the Company, issued (i) $1,250,000,000 aggregate principal amount of 4.875% first priority
senior secured notes due 2026 (the “First Priority Notes”) pursuant to an indenture, dated as of June 5, 2019 (the “First Priority Notes Indenture”), between the Escrow Issuer and U.S. Bank, National Association as trustee and collateral agent (the
“Trustee”) and (ii) $500,000,000 aggregate principal amount of 5.625% second priority senior secured notes due 2027 (the “Second Priority Notes” and together with the First Priority Notes, the “Notes”) pursuant to an indenture, dated as of June 5,
2019 (the “Second Priority Notes Indenture” and together with the First Priority Notes Indenture, the “Indentures”), between the Escrow Issuer and the Trustee, as trustee and collateral agent. On June 5, 2019, pursuant to the Indentures, the Issuer
deposited into escrow accounts with U.S. Bank National Association, as escrow agent, the gross proceeds from the First Priority Notes and the Second Priority Notes.
In connection with the completion of the Acquisition, on July 1, 2019 (the “Escrow Release Date”), the gross proceeds of the Notes were released to Berry Global, Inc. (“BGI”), a wholly owned
subsidiary of the Company. Also on the Escrow Release Date, in relation to the release of the proceeds from escrow, (i) by entry into a supplemental indenture with respect to the First Priority Notes Indenture (the “First Priority Notes Supplemental
Indenture”) among BGI, the Escrow Issuer, the Company, certain subsidiaries of the Company (the “Guarantor Subsidiaries”) and the Trustee, BGI assumed the Escrow Issuer’s obligations under the First Priority Notes and the Escrow Issuer was released
from the obligations thereunder, and the First Priority Notes became fully and unconditionally guaranteed, jointly and severally, on a first priority senior secured basis, by the Guarantor Subsidiaries and by Berry on an unsecured basis, and (ii) by
entry into a supplemental indenture with respect to the Second Priority Notes Indenture (the “Second Priority Notes Supplemental Indenture”, and together with the First Priority Notes Supplemental Indenture, the “Supplemental Indentures”) among BGI,
the Escrow Issuer, the Company, the Guarantor Subsidiaries and the Trustee, BGI assumed the Escrow Issuer’s obligations under the Second Priority Notes and the Escrow Issuer was released from the obligations thereunder, and the Second Priority Notes
became fully and unconditionally guaranteed, jointly and severally, on a second priority senior secured basis, by the Subsidiary Guarantors, and by Berry on an unsecured basis.
The foregoing descriptions of the Supplemental Indentures do not purport to be complete and are qualified in their entirety by reference to the actual text of the Supplemental Indentures, which are
filed herewith as Exhibits 4.1 and 4.2 and are incorporated herein by reference.
Incremental Term Loans
On July 1, 2019, the Company, BGI and certain of its subsidiaries entered into an Incremental Assumption Agreement and Amendment with Credit Suisse AG, Cayman Islands Branch, as Administrative Agent,
and Goldman Sachs Bank USA as the Initial Term U Lender and the Initial Term V Lender to borrow incremental amounts of $4,250,000,000 (the “Term U Loan”) and €1,075,000,000 (the “Term V Loan” and together with the Term U Loan, the “Term Loans”) under
BGI’s existing term loan credit agreement. The Term U Loan bears interest at the option of BGI at LIBOR plus 2.50% per annum or the Alternative Base Rate plus 1.50% per annum. The Term V Loan bears interest at EURIBOR plus 2.50% per annum. The Term
U Loan and the Term V Loan mature on July 1, 2026, and are subject to customary amortization. If certain specified repricing events occur prior to January 1, 2020, BGI will pay a fee to the applicable lenders equal to 1.00% of the outstanding
principal amount of the Term U Loan and/or the Term V Loan subject to such repricing event.
The proceeds of the Term U Loan and the Term V Loan were used to refinance BGI’s existing Term S Loans, fund a portion of the cash consideration due in respect of the Acquisition, pay off or otherwise
satisfy certain outstanding RPC indebtedness, and pay costs and expenses of the Acquisition.
The Incremental Assumption Agreement and Amendment amended BGI’s existing term loan credit agreement and certain agreements related thereto to permit Berry Plastics Canada, Inc. to make borrowings
under the Canadian Tranche previously disclosed and described in a Current Report on Form 8-K filed on May 6, 2019 by the Company.
The foregoing description of the Incremental Assumption Agreement and Amendment does not purport to be complete and is qualified in its entirety by reference to the actual text of the Incremental
Assumption Agreement and Amendment, which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.
| Item 2.01 |
Completion of Acquisition or Disposition of Assets.
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On March 8, 2019, the Company issued an announcement (the “UK Announcement”) pursuant to Rule 2.7 of the City Code disclosing the terms of an all-cash firm offer for the entire issued and to be issued
share capital of RPC. Under the terms of the offer, RPC shareholders were entitled to receive 793 pence in cash for each RPC share (implying a value of approximately £3.3 billion).
The Acquisition and refinancing of RPC’s net debt was funded in part with the net proceeds of the Notes and the Term Loans described in Item 1.01 of this Current Report on Form 8-K.
The foregoing description of the Acquisition does not purport to be complete and is qualified in its entirety by reference to the UK Announcement and the Co-operation Agreement entered into in
connection with the Acquisition, which are filed as Exhibit 2.1 and Exhibit 2.2, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant.
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| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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Effective July 1, 2019, the Company appointed Jean-Marc Galvez to the position of President - Consumer Packaging - International Division. Since 2015, Mr. Galvez, age 52, has held multiple positions of increasing
responsibility with the Company. Mr. Galvez most recently served as the Company’s President - Consumer Packaging Division, a position he held since 2017, and President - Europe, Middle East, India and Africa, a position he held from 2015 to 2017. Prior
to that, he was President - EMEIA Global Building and Geosynthetics for AVINTIV, Inc., which the Company acquired in 2015, from 2014 to 2015.
In addition, effective July 1, 2019, the Company appointed Bill Norman to the position of President - Consumer Packaging - North America Division. Since 1993, Mr. Norman, age 47, has held multiple positions of increasing
responsibility with the Company. Mr. Norman most recently served as the Company’s Executive Vice President - Consumer Packaging Commercial Operations, which he recently assumed after having served as Executive Vice President & General Manager -
Consumer Packaging Food since 2016, and President - Rigid Open Top Division, a position he held from 2014 to 2016.
| Item 9.01 |
Financial Statements and Exhibits.
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(a) Financial statements of business acquired.
The Company intends to file the financial statements of RPC required by this Item no later than 71 calendar days after the date that this Current Report on Form 8-K is required to be filed.
(b) Pro forma financial information.
The Company intends to file the pro forma financial information reflecting the Acquisition required by this Item no later than 71 calendar days after the date that this Current Report on Form 8-K is required to be filed.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Berry Global Group, Inc. |
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| (Registrant) |
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July 2, 2019
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By:
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/s/ Jason K. Greene |
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| Name: |
Jason K. Greene |
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| Title: |
Executive Vice President, Chief Legal Officer
and Secretary
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EXHIBIT 4.1
SUPPLEMENTAL INDENTURE – BERRY ASSUMPTION
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of July 1, 2019, among Berry Global, Inc., a Delaware corporation (the “Company”), each of the parties identified as a
Subsidiary Guarantor on the signature pages hereto (each a “Subsidiary Guarantor” and, collectively, the “Subsidiary Guarantors”), each a subsidiary of the Company, Berry Global Group, Inc., a Delaware corporation (the “Parent
Guarantor”) and U.S. Bank National Association, a national banking association, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS Berry Global Escrow Corporation (the “Escrow Issuer”) has heretofore entered into that certain indenture with the Trustee, dated as of June 5, 2019 (as amended, supplemented or otherwise
modified, the “Indenture”), providing initially for the issuance of $1,250,000,000 in aggregate principal amount of the Escrow Issuer’s 4.875% First Priority Senior Secured Notes due 2026 (the “Securities”);
WHEREAS, the Escrow Issuer , the Company, the Parent Guarantor and each Subsidiary Guarantor that is a signatory hereto is executing this Supplemental Indenture pursuant to which (i) the Company shall
become a party to the Indenture and assume all of the rights and be subject to all of the obligations and agreements of the “Issuer” under the Securities and the Indenture, (ii) the Parent Guarantor shall become a party to the Indenture and assume all
of the rights and be subject to all of the obligations and agreements of the “Parent Guarantor” under the Indenture, and (iii) each Subsidiary Guarantor shall become a party to the Indenture and assume all of the rights and be subject to all of the
obligations and agreements of a “Subsidiary Guarantor” under the Indenture;
WHEREAS Sections 4.11 and 12.06 of the Indenture provide that under certain circumstances the Issuer is required to cause the Parent Guarantor and each Subsidiary Guarantor to execute and deliver to
the Trustee a supplemental indenture pursuant to which such Parent Guarantor and Subsidiary Guarantor, respectively, shall unconditionally guarantee all the Issuer’s Obligations under the Securities and the Indenture pursuant to a Parent Guarantee and
a Subsidiary Guarantee, respectively, on the terms and conditions set forth herein; and
WHEREAS Sections 4.18 and 9.01 of the Indenture provide that the Escrow Issuer and the Company may execute and deliver to the Trustee a supplemental indenture pursuant to which the Company shall
unconditionally assume all of the Escrow Issuer’s Note Obligations under the Securities and the Indenture on the terms and conditions herein set forth;
WHEREAS Sections 4.11, 4.18, 9.01 and 12.06 of the Indenture provide that the Parent Guarantor and the Subsidiary Guarantors may execute and deliver to the Trustee a supplemental indenture pursuant to
which each guarantees the Note Obligations; and
WHEREAS Section 4.18 of the Indenture provides that upon the assumption by the Company of all of the Escrow Issuer’s Note Obligations under the Securities and the Indenture, the Escrow Issuer shall be
released from all Note Obligations under the Securities and the Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, Escrow Issuer, the Company, the Subsidiary Guarantors, the
Parent Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Defined Terms. Capitalized terms used herein have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in this
Supplemental Indenture shall refer to the term “Holders” as defined in the Indenture, and the Trustee and the Collateral Agent acting on behalf of and for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of
similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to be Bound. The Company hereby unconditionally assumes the Escrow
Issuer’s Note Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in the Indenture and agrees to be bound by all other applicable provisions of the Indenture and the Securities and to perform all of
the obligations and agreements of the Escrow Issuer under the Indenture. The Company hereby becomes party to the Indenture as the “Issuer” for all purposes thereof and as such will have all of the rights and be subject to all of the obligations and
agreements of the “Issuer” under the Indenture.
3. Agreement to Guarantee. (i) The Parent Guarantor hereby agrees to
unconditionally guarantee the Issuer’s Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in Article 14 of the Indenture and to be bound by all other applicable provisions of the Indenture and the
Securities and to perform all of the obligations and agreements of the Parent Guarantor under the Indenture. (ii) Each Subsidiary Guarantor hereby agrees, jointly and severally with all existing Subsidiary Guarantors (if any), to unconditionally
guarantee the Issuer’s Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in Article 12 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Securities and to
perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.
4. Notices. All notices or other communications to the Parent Guarantor and the
Subsidiary Guarantors shall be given as provided in Section 13.02 of the Indenture.
5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except
as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
6. Release of Obligations of Escrow Issuer. Upon execution of this Supplemental
Indenture by the Company, the Escrow Issuer, the Parent Guarantor, the Subsidiary Guarantors and the Trustee, the Escrow Issuer is released and discharged from all Note Obligations under the Indenture and the Securities.
7. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
8. Trustee Makes No Representation. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture. The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture, but on the terms and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee. Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements
contained herein, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company by action or otherwise, (iii) the due execution
hereof by the Company or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
9. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction thereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
BERRY GLOBAL, INC., as Issuer
By: /s/ Mark W. Miles
Name: Mark W. Miles
Title: Chief Financial Officer and Treasurer
BERRY GLOBAL GROUP, INC., as Parent Guarantor
By: /s/ Mark W. Miles
Name: Mark W. Miles
Title: Chief Financial Officer and Treasurer
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel and Secretary
SUBSIDIARY GUARANTORS:
AEROCON, LLC
AVINTIV ACQUISITION CORPORATION
AVINTIV INC.
AVINTIV SPECIALTY MATERIALS INC.
BERRY FILM PRODUCTS ACQUISITION COMPANY, INC.
BERRY FILM PRODUCTS COMPANY, INC.
BERRY PLASTICS ACQUISITION CORPORATION V
BERRY PLASTICS ACQUISITION CORPORATION XII
BERRY PLASTICS ACQUISITION CORPORATION XIII
BERRY GLOBAL FILMS, LLC
BERRY PLASTICS ACQUISITION LLC X
BERRY PLASTICS DESIGN, LLC
BERRY PLASTICS FILMCO, INC.
BERRY PLASTICS 1K, LLC
BERRY PLASTICS OPCO, INC.
BERRY PLASTICS SP, INC.
BERRY PLASTICS TECHNICAL SERVICES, INC.
BERRY SPECIALTY TAPES, LLC
BERRY STERLING CORPORATION
BPREX BRAZIL HOLDING INC.
BPREX CLOSURE SYSTEMS, LLC
BPREX CLOSURES KENTUCKY INC.
BPREX CLOSURES, LLC
BPREX DELTA INC.
BPREX HEALTHCARE BROOKVILLE INC.
BPREX HEALTHCARE PACKAGING INC.
BPREX PLASTIC PACKAGING INC.
BPREX PLASTICS SERVICES COMPANY INC.
BPREX PRODUCT DESIGN AND ENGINEERING INC.
BPREX SPECIALTY PRODUCTS PUERTO RICO INC.
CAPLAS LLC
CAPLAS NEPTUNE, LLC
CAPTIVE PLASTICS HOLDINGS, LLC
CAPTIVE PLASTICS, LLC
CARDINAL PACKAGING, INC.
CHICOPEE, INC.
COVALENCE SPECIALTY ADHESIVES LLC
COVALENCE SPECIALTY COATINGS LLC
CPI HOLDING CORPORATION
DOMINION TEXTILE (USA), L.L.C.
FABRENE, L.L.C.
FIBERWEB GEOS, INC.
FIBERWEB, LLC
KERR GROUP, LLC
KNIGHT PLASTICS, LLC
OLD HICKORY STEAMWORKS, LLC
PACKERWARE, LLC
PESCOR, INC.
PGI EUROPE, INC.
PGI POLYMER, INC.
PLIANT INTERNATIONAL, LLC
PLIANT, LLC
POLY-SEAL, LLC
PRIME LABEL & SCREEN INCORPORATED
PRISTINE BRANDS CORPORATION
PROVIDENCIA USA, INC.
ROLLPAK CORPORATION
SAFFRON ACQUISITION, LLC
SETCO, LLC
SUN COAST INDUSTRIES, LLC
UNIPLAST HOLDINGS, LLC
UNIPLAST U.S., INC.
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST, INC.
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel
and Secretary
LADDAWN, INC.
DUMPLING ROCK, LLC
ESTERO PORCH, LLC
LAMB’S GROVE, LLC
MILLHAM, LLC
SUGDEN, LLC
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President
GRAFCO INDUSTRIES LIMITED PARTNERSHIP
By: Caplas Neptune, LLC, its General Partner
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel
and Secretary
CHOCKSETT ROAD LIMITED PARTNERSHIP
By: Berry Global, Inc., its General Partner
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel
and Secretary
CHOCKSETT ROAD REALTY TRUST
By: Laddawn, Inc., its Trustee
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President
SEAL FOR LIFE INDUSTRIES, LLC
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel and Secretary
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
By: /s/ Beverly A. Freeney
Name: Beverly A. Freeney
Title: Vice President
EXHIBIT 4.2
SUPPLEMENTAL INDENTURE – BERRY ASSUMPTION
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of July 1, 2019, among Berry Global, Inc., a Delaware corporation (the “Company”), each of the parties identified as a
Subsidiary Guarantor on the signature pages hereto (each a “Subsidiary Guarantor” and, collectively, the “Subsidiary Guarantors”), each a subsidiary of the Company, Berry Global Group, Inc., a Delaware corporation (the “Parent
Guarantor”) and U.S. Bank National Association, a national banking association, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS Berry Global Escrow Corporation (the “Escrow Issuer”) has heretofore entered into that certain indenture with the Trustee, dated as of June 5, 2019 (as amended, supplemented or
otherwise modified, the “Indenture”), providing initially for the issuance of $500,000,000 in aggregate principal amount of the Escrow Issuer’s 5.625% Second Priority Senior Secured Notes due 2027 (the “Securities”);
WHEREAS, the Escrow Issuer , the Company, the Parent Guarantor and each Subsidiary Guarantor that is a signatory hereto is executing this Supplemental Indenture pursuant to which (i) the Company
shall become a party to the Indenture and assume all of the rights and be subject to all of the obligations and agreements of the “Issuer” under the Securities and the Indenture, (ii) the Parent Guarantor shall become a party to the Indenture and
assume all of the rights and be subject to all of the obligations and agreements of the “Parent Guarantor” under the Indenture, and (iii) each Subsidiary Guarantor shall become a party to the Indenture and assume all of the rights and be subject to
all of the obligations and agreements of a “Subsidiary Guarantor” under the Indenture;
WHEREAS Sections 4.11 and 12.06 of the Indenture provide that under certain circumstances the Issuer is required to cause the Parent Guarantor and each Subsidiary Guarantor to execute and deliver to
the Trustee a supplemental indenture pursuant to which such Parent Guarantor and Subsidiary Guarantor, respectively, shall unconditionally guarantee all the Issuer’s Obligations under the Securities and the Indenture pursuant to a Parent Guarantee
and a Subsidiary Guarantee, respectively, on the terms and conditions set forth herein; and
WHEREAS Sections 4.18 and 9.01 of the Indenture provide that the Escrow Issuer and the Company may execute and deliver to the Trustee a supplemental indenture pursuant to which the Company shall
unconditionally assume all of the Escrow Issuer’s Note Obligations under the Securities and the Indenture on the terms and conditions herein set forth;
WHEREAS Sections 4.11, 4.18, 9.01 and 12.06 of the Indenture provide that the Parent Guarantor and the Subsidiary Guarantors may execute and deliver to the Trustee a supplemental indenture pursuant
to which each guarantees the Note Obligations; and
WHEREAS Section 4.18 of the Indenture provides that upon the assumption by the Company of all of the Escrow Issuer’s Note Obligations under the Securities and the Indenture, the Escrow Issuer shall
be released from all Note Obligations under the Securities and the Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, Escrow Issuer, the Company, the Subsidiary Guarantors, the
Parent Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Defined Terms. Capitalized terms used herein have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in
this Supplemental Indenture shall refer to the term “Holders” as defined in the Indenture, and the Trustee and the Collateral Agent acting on behalf of and for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of
similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to be Bound. The Company hereby unconditionally assumes the Escrow
Issuer’s Note Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in the Indenture and agrees to be bound by all other applicable provisions of the Indenture and the Securities and to perform all of
the obligations and agreements of the Escrow Issuer under the Indenture. The Company hereby becomes party to the Indenture as the “Issuer” for all purposes thereof and as such will have all of the rights and be subject to all of the obligations and
agreements of the “Issuer” under the Indenture.
3. Agreement to Guarantee. (i) The Parent Guarantor hereby agrees to
unconditionally guarantee the Issuer’s Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in Article 14 of the Indenture and to be bound by all other applicable provisions of the Indenture and the
Securities and to perform all of the obligations and agreements of the Parent Guarantor under the Indenture. (ii) Each Subsidiary Guarantor hereby agrees, jointly and severally with all existing Subsidiary Guarantors (if any), to unconditionally
guarantee the Issuer’s Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in Article 12 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Securities and
to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.
4. Notices. All notices or other communications to the Parent Guarantor and the
Subsidiary Guarantors shall be given as provided in Section 13.02 of the Indenture.
5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except
as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
6. Release of Obligations of Escrow Issuer. Upon execution of this Supplemental
Indenture by the Company, the Escrow Issuer, the Parent Guarantor, the Subsidiary Guarantors and the Trustee, the Escrow Issuer is released and discharged from all Note Obligations under the Indenture and the Securities.
7. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
8. Trustee Makes No Representation. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture. The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture, but on the terms and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee. Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements
contained herein, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company by action or otherwise, (iii) the due execution
hereof by the Company or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
9. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction thereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| BERRY GLOBAL, INC., as Issuer | |
|
By:
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/s/Mark W. Miles |
| Name: Mark W. Miles |
|
| Title: Chief Financial Officer and Treasurer |
|
| BERRY GLOBAL GROUP, INC., as Parent Guarantor | |
|
By:
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/s/Mark W. Miles |
| Name: Mark W. Miles |
|
| Title: Chief Financial Officer and Treasurer |
|
| BERRY GLOBAL ESCROW CORPORATION | |
|
By:
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/s/Jason K. Greene |
| Name: Jason K. Greene |
|
| Title: Executive Vice President, General Counsel and Secretary |
|
SUBSIDIARY GUARANTORS:
AEROCON, LLC
AVINTIV ACQUISITION CORPORATION
AVINTIV INC.
AVINTIV SPECIALTY MATERIALS INC.
BERRY FILM PRODUCTS ACQUISITION COMPANY, INC.
BERRY FILM PRODUCTS COMPANY, INC.
BERRY PLASTICS ACQUISITION CORPORATION V
BERRY PLASTICS ACQUISITION CORPORATION XII
BERRY PLASTICS ACQUISITION CORPORATION XIII
BERRY GLOBAL FILMS, LLC
BERRY PLASTICS ACQUISITION LLC X
BERRY PLASTICS DESIGN, LLC
BERRY PLASTICS FILMCO, INC.
BERRY PLASTICS 1K, LLC
BERRY PLASTICS OPCO, INC.
BERRY PLASTICS SP, INC.
BERRY PLASTICS TECHNICAL SERVICES, INC.
BERRY SPECIALTY TAPES, LLC
BERRY STERLING CORPORATION
BPREX BRAZIL HOLDING INC.
BPREX CLOSURE SYSTEMS, LLC
BPREX CLOSURES KENTUCKY INC.
BPREX CLOSURES, LLC
BPREX DELTA INC.
BPREX HEALTHCARE BROOKVILLE INC.
BPREX HEALTHCARE PACKAGING INC.
BPREX PLASTIC PACKAGING INC.
BPREX PLASTICS SERVICES COMPANY INC.
BPREX PRODUCT DESIGN AND ENGINEERING INC.
BPREX SPECIALTY PRODUCTS PUERTO RICO INC.
CAPLAS LLC
CAPLAS NEPTUNE, LLC
CAPTIVE PLASTICS HOLDINGS, LLC
CAPTIVE PLASTICS, LLC
CARDINAL PACKAGING, INC.
CHICOPEE, INC.
COVALENCE SPECIALTY ADHESIVES LLC
COVALENCE SPECIALTY COATINGS LLC
CPI HOLDING CORPORATION
DOMINION TEXTILE (USA), L.L.C.
FABRENE, L.L.C.
FIBERWEB GEOS, INC.
FIBERWEB, LLC
KERR GROUP, LLC
KNIGHT PLASTICS, LLC
OLD HICKORY STEAMWORKS, LLC
PACKERWARE, LLC
PESCOR, INC.
PGI EUROPE, INC.
PGI POLYMER, INC.
PLIANT INTERNATIONAL, LLC
PLIANT, LLC
POLY-SEAL, LLC
PRIME LABEL & SCREEN INCORPORATED
PRISTINE BRANDS CORPORATION
PROVIDENCIA USA, INC.
ROLLPAK CORPORATION
SAFFRON ACQUISITION, LLC
SETCO, LLC
SUN COAST INDUSTRIES, LLC
UNIPLAST HOLDINGS, LLC
UNIPLAST U.S., INC.
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST, INC.
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By:
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/s/Jason K. Greene |
| Name: Jason K. Greene |
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| Title: Executive Vice President, General Counsel and Secretary |
LADDAWN, INC.
DUMPLING ROCK, LLC
ESTERO PORCH, LLC
LAMB’S GROVE, LLC
MILLHAM, LLC
SUGDEN, LLC
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By:
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/s/Jason K. Greene |
| Name: Jason K. Greene |
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| Title: Executive Vice President, General Counsel and Secretary |
| GRAFCO INDUSTRIES LIMITED PARTNERSHIP | |
| By: |
Caplas Neptune, LLC, its General Partner |
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By:
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/s/Jason K. Greene |
| Name: Jason K. Greene |
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| Title: Executive Vice President, General Counsel and Secretary |
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| CHOCKSETT ROAD LIMITED PARTNERSHIP | |
| By: |
Berry Global, Inc., its General Partner |
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By:
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/s/Jason K. Greene |
| Name: Jason K. Greene |
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| Title: Executive Vice President, General Counsel and Secretary |
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| CHOCKSETT ROAD REALTY TRUST | |
| By: |
Laddawn, Inc., its Trustee |
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By:
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/s/Jason K. Greene |
| Name: Jason K. Greene |
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| Title: Executive Vice President |
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| SEAL FOR LIFE INDUSTRIES, LLC |
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By:
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/s/Jason K. Greene |
| Name: Jason K. Greene |
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| Title: Executive Vice President, General Counsel and Secretary |
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| U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE | |
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By:
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/s//Beverly A. Freeney |
| Name: Beverly A. Freeney | |
| Title: Vice President | |
EXHIBIT 10.1
EXECUTION VERSION
INCREMENTAL ASSUMPTION AGREEMENT AND AMENDMENT
Dated as of July 1, 2019,
among
BERRY GLOBAL GROUP, INC.,
BERRY GLOBAL, INC.
and
CERTAIN SUBSIDIARIES OF BERRY GLOBAL, INC.
as Loan Parties,
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
as Administrative Agent,
GOLDMAN SACHS BANK USA
as Initial Term U Lender,
and
GOLDMAN SACHS BANK USA
as Initial Term V Lender
INCREMENTAL ASSUMPTION AGREEMENT AND AMENDMENT
THIS INCREMENTAL ASSUMPTION AGREEMENT AND AMENDMENT (this “Agreement”), dated as of July 1, 2019, is among BERRY GLOBAL, INC. (formerly known as Berry
Plastics Corporation), a Delaware corporation (the “Borrower”), BERRY GLOBAL GROUP, INC. (formerly known as Berry Plastics Group, Inc.), a Delaware corporation (“Holdings”), each Subsidiary of the Borrower listed on the signature pages
hereto (together with Holdings and Borrower, the “Loan Parties”), Goldman Sachs Bank USA, as an Incremental Term Lender (as defined in the Credit Agreement referred to below) with respect to the Term U Loans (in such capacity, the “Initial Term
U Lender”), Goldman Sachs Bank USA, as an Incremental Term Lender with respect to the Term V Loans (in such capacity, the “Initial Term V Lender”), and Credit Suisse AG, Cayman Islands Branch (formerly known as Credit Suisse, Cayman
Islands Branch), as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders under the Credit Agreement.
PRELIMINARY STATEMENTS:
(1) The Loan Parties, the Administrative Agent and the other agents and lenders party thereto are parties to the Second Amended and Restated Term Loan Credit Agreement dated as of April 3, 2007 (as modified by that certain Incremental Assumption
Agreement, dated as of February 8, 2013, that certain Incremental Assumption Agreement, dated as of January 6, 2014, that certain Incremental Assumption Agreement and Amendment, dated as of October 1, 2015, that certain Incremental Assumption
Agreement and Amendment, dated as of June 15, 2016, that certain Incremental Assumption Agreement, dated as of January 19, 2017, that certain Incremental Assumption Agreement, dated as of February 10, 2017, that certain Incremental Assumption
Agreement, dated as of August 10, 2017, that certain Incremental Assumption Agreement, dated as of November 27, 2017, that certain Incremental Assumption Agreement and Amendment dated as of February 12, 2018, that certain Incremental Assumption
Agreement dated as of May 16, 2018 and that certain Amendment Agreement, dated as of April 10, 2019 (collectively, the “Prior Incremental Assumption Agreements”) (as so amended by the Prior Incremental Assumption Agreements, the “Credit
Agreement”). Capitalized terms not otherwise defined in this Agreement have the same meanings as specified in the Credit Agreement.
(2) Goldman Sachs Bank USA and Wells Fargo Bank, National Association are acting as joint lead arrangers and bookrunners (collectively, the “Lead Arrangers”), J.P. Morgan Chase Bank, N.A. (acting through itself or one of its affiliates),
Morgan Stanley Senior Funding, Inc. and RBC Capital Markets1 are acting as joint bookrunners and BofA Securities, Inc., Barclays Bank PLC, BMO Capital Markets Corp., Deutsche Bank Securities Inc., UBS Securities LLC and U.S. Bank National
Association are acting as co-managers in connection with this Agreement (collectively, the “Amendment Arrangers”).
(3) The Borrower has requested that the Initial Term U Lender provide an Incremental Term Loan Commitment (and Incremental Term Loans consisting of Other Term Loans) in the amount of $4,250,000,000 (such commitment, the “Term U Loan Commitment”
and such Incremental Term Loans, the “Term U Loans”), and the Initial Term U Lender is willing to provide the Term U Loan Commitment and Term U Loans, subject in each case to the terms and conditions set forth herein.
1 RBC Capital Markets is the brand name for the capital markets activities of Royal Bank of Canada and its affiliates.
(4) The Borrower has requested that the Initial Term V Lender provide an Incremental Term Loan Commitment (and Incremental Term Loans consisting of Other Term Loans) in the amount of €1,075,000,000 (such commitment, the “Term V Loan Commitment”
and such Incremental Term Loans, the “Term V Loans”), and the Initial Term V Lender is willing to provide the Term V Loan Commitment and Term V Loans, subject in each case to the terms and conditions set forth herein.
(5) The proceeds of the Term U Loans and the Term V Loans shall be used to refinance the Term S Loans, consummate the Acquisition, pay the Acquisition Transaction Expenses and repay and discharge in full, and terminate all outstanding commitments
(if any) of certain of Target’s existing indebtedness, including, without limitation, (i) £870 million revolving credit facility due April 30, 2020, (ii) €450 million revolving credit facility due June 24, 2019 (to the extent not previously repaid)
and (iii) $124 million and €25 million notes due December 15, 2021 and (iv) $750 million term loan due 30 July 2019 (to the extent not previously repaid).
(6) The Loan Parties, the Initial Term U Lender, the Initial Term V Lender and the Administrative Agent are entering into this Agreement in order to evidence the Term U Loan Commitment and Term V Loans and the Term U Loan Commitment and Term V
Loans in accordance with Section 2.21 of the Credit Agreement.
(7) The Loan Parties, the Collateral Agent and Bank of America, N.A., as collateral agent, are parties to the Second Amended and Restated First Lien Guarantee and Collateral Agreement, dated as of April 3, 2007 (as amended, supplemented or
otherwise modified from time to time, the “Existing Collateral Agreement”).
(8) The Loan Parties, the Collateral Agent, the Administrative Agent, Bank of America, N.A., as revolving facility administrative agent, and Bank of America, N.A., as revolving facility collateral agent, are parties to the Second Amended and
Restated Senior Lender Priority and Intercreditor Agreement, dated as of February 5, 2008 (as amended, supplemented or otherwise modified from time to time, the “Existing Senior Lender Intercreditor Agreement”).
(9) Pursuant to Section 2.21(b) and Section 9.08 of the Credit Agreement, Holdings, the Borrower and the Lenders may, and hereby express their desire to, amend the Credit Agreement for certain purposes as set forth below.
(10) Pursuant to Section 7.09 of the Existing Collateral Agreement and Section 9.08 of the Credit Agreement, Holdings, the Borrower, the Lenders, Bank of America, N.A., as the Revolving Facility Collateral Agent, and the lenders under the Revolving
Credit Agreement, as applicable, may, and hereby express their desire to, amend the Existing Collateral Agreement for certain purposes as set forth below.
(11) Pursuant to Section 6.02 of the Existing Senior Lender Intercreditor Agreement and Section 9.08 of the Credit Agreement, Holdings, the Borrower, the Lenders, Bank of America, N.A., as the Revolving Facility Collateral Agent, and the lenders
under the Revolving Credit Agreement, as applicable, may, and hereby express their desire to, amend the Existing Senior Lender Intercreditor Agreement for certain purposes as set forth below.
SECTION 1. New
Commitments and New Loans
(a) Pursuant to Section 2.21 of the Credit Agreement, and subject to the satisfaction of the conditions set forth in Section 3 hereof:
(i) The Initial Term U Lender agrees to make a single loan to the Borrower on the Effective Date (as defined below) in a principal amount equal to the amount set forth with respect to the Initial Term U Lender on Schedule 1A
hereto.
(ii) The Initial Term V Lender agrees to make a single loan to the Borrower on the Effective Date in a principal amount equal to the amount set forth with respect to the Initial Term V Lender on Schedule 1B hereto.
(b) The Administrative Agent hereby approves of each of the Initial Term U Lender and the Initial Term V Lender as Incremental Term Lenders under the Credit Agreement and approves of the terms of the Term U Loans and the terms of
the Term V Loans, in each case, as set forth in the Amended Credit Agreement.
SECTION 2. Effective
Date Amendments. The following amendments (the “Effective Date Amendments”) shall become effective on the Effective Date:
(a) The Credit Agreement shall be amended to delete the stricken text
(indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example:
double-underlined text) as set forth in Exhibit A hereto (the “Amended Credit Agreement”).
(b) The Existing Collateral Agreement shall be amended to delete the
stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the
following example: double-underlined text) as set forth in Exhibit B hereto (the “Amended Collateral Agreement”).
(c) The Existing Senior Lender Intercreditor Agreement shall be amended as follows:
(i) In Section 1.01(b), the definition of “Revolving Facility Secured Parties” shall be replaced in its entirety with the following:
““Revolving Facility Secured Parties” means (a) the Revolving Facility Lenders and any Affiliate (as
defined in the Revolving Credit Agreement) of a Revolving Facility Lender or Revolving Agent (as defined in the Security Agreement) that is a provider of cash management services to which any obligation referred to in clause (c) of the definition of
the term “Obligations” (as defined in the Security Agreement) is owed, (b) the Revolving Facility Administrative Agent and the Revolving Facility Collateral Agent, (c) each Issuing Bank (as defined in the Revolving Credit Agreement) party to the
Revolving Credit Agreement, (d) each counterparty to any Swap Agreement (as defined in the Revolving Credit Agreement) entered into with a Loan Party (as defined in the Revolving Credit Agreement), the obligations under which constitute Obligations (as
defined in the Security Agreement) referred to in clauses (b)(i) and (b)(iii) of the definition thereof, (e) the beneficiaries of each indemnification obligation undertaken by any Loan Party (as defined in the Revolving Credit Agreement) under any Loan
Document (as defined in the Revolving Credit Agreement) and (f) the successors and permitted assigns of each of the foregoing.”
(ii) In Section 1.01(b), the definition of “Term Loan Secured Parties” shall be replaced in its entirety with the following:
““Term Loan Secured Parties” means (a) the Term Loan Lenders, (b) the Term Facility Administrative Agent
and the Term Facility Collateral Agent, (c) each counterparty to any Swap Agreement (as defined in the Term Loan Credit Agreement) entered into with a Loan Party (as defined in the Term Loan Credit Agreement), the obligations under which constitute
Obligations (as defined in the Security Agreement) referred to in clauses (b)(ii) and (b)(iv) of the definition thereof, (d) the beneficiaries of each indemnification obligation undertaken by any Loan Party (as defined in the Term Loan Credit
Agreement) under any Loan Document (as defined in the Term Loan Credit Agreement) and (e) the successors and permitted assigns of each of the foregoing.”
(iii) Article II shall be amended by adding the following as a new Section 2.13:
SECTION 2.13 Canadian Collateral. Each Senior Fixed Collateral Agent, on behalf of itself and the applicable Senior Fixed Obligations Secured
Parties, acknowledges and agrees that, notwithstanding anything in this Agreement to the contrary, (i) no Senior Fixed Collateral Agent nor any Senior Fixed Obligations Secured Party shall have any Lien on the assets of any subsidiaries of the
Company organized under the laws of Canada or any province thereof (such subsidiaries, the “Canadian Grantors”) that secure the applicable Revolving Facility Obligations (such assets, the “Canadian Collateral”) or any other rights thereto or interests therein, or commence or take any enforcement action with respect to the Canadian Grantors or the Canadian Collateral and (ii) the
term “Grantors,” as used in the Agreement shall not include any Canadian Grantors and the terms “Revolving Facility Senior Collateral,” “Collateral” and “Senior Fixed Obligations Senior Collateral,” as used in the Agreement shall not include any
Canadian Collateral.
SECTION 3. Effective Date
Conditions. This Agreement and the Effective Date Amendments shall become effective, the Initial Term U Lender agrees to make its Term U Loans to the Borrower in an aggregate principal amount equal to its Term U Loan Commitment and the Initial
Term V Lender agrees to make its Term V Loans to the Borrower in an aggregate principal amount equal to its Term V Loan Commitment, in each case, on and as of the date (the “Effective Date”) on which the following conditions shall have been
satisfied:
(a) The Administrative Agent (or its counsel) shall have received (i) from each party hereto prior to giving effect to this Agreement (including (x) the Initial Term U Lender and the Initial Term V Lender constituting the Required Lenders after
giving effect to this Amendment) either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement and (ii) from Bank of America, N.A., as administrative agent under the Revolving Credit Agreement and as Revolving Facility Collateral Agent, a counterpart of the Amended
Collateral Agreement and the Amended Senior Lender Intercreditor Agreement signed on behalf of such party.
(b) The Amendment Arrangers shall have received, at least three business days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including, without limitation, the PATRIOT Act, to the extent requested in writing at least 10 days prior to the Effective Date.
(c) To the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, no later than three Business Days in advance of the Effective Date, the Administrative Agent shall have received a Beneficial
Ownership Certification in relation to the Borrower to the extent reasonably requested by it at least 10 Business Days in advance of the Effective Date.
(d) In the case of a Scheme:
(A) the Scheme Effective Date shall have occurred;
(B) the Acquisition shall have been, or substantially concurrently with the occurrence of the Effective Date shall be, consummated in all material respects in accordance with the terms of the Scheme Documents (including the Scheme Circular), after
giving effect to any modifications, amendments, consents or waivers thereof or thereto, other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the Lenders that are effected without the prior
written consent of the Lead Arrangers, provided that no consent of the Lead Arrangers shall be required (a) if any such modification, amendment, consent or waiver shall have been required by any applicable Law (including, without limitation,
the Companies Act of 2006 or the Takeover Rules), the Takeover Panel, any applicable stock exchange, any applicable government or other regulatory authority, or a court of competent jurisdiction (including, without limitation, the Court) and/or (b)
to any waiver of a condition to the Scheme where such waiver does not relate to a condition which the Acquisition SPV reasonably considers that it would be entitled to in accordance with Rule 13.5(a) of the Code, to invoke so as to cause the Scheme
not to proceed, to lapse, or to be withdrawn;
(C) receipt by the Administrative Agent of a copy certified by the Borrower of:
(1) the Court
Orders; and
(2) each of (i)
the Scheme Documents and (ii) documents reflecting amendments or waivers thereof and thereto as are permitted by the terms of this Agreement;
(e) In the case of an Offer:
(A) the Offer Effective Date has occurred;
(B) receipt by the Administrative Agent of a copy certified by the Borrower of each of (i) the Offer Documents and (ii) documents otherwise reflecting amendments or waivers thereof and thereto as are permitted by the terms of this Agreement;
(C) the acquisition of no less than 75% of the Target Shares shall have been, or substantially concurrently with the occurrence of the Effective Date shall be, consummated in all material respects in accordance with the terms of the Offer
Documents (including the Rule 2.7 Announcement), after giving effect to any modifications, amendments, consents or waivers thereof or thereto, other than those modifications, amendments, consents or waivers that are materially adverse to the
interests of the Lenders that are effected without the prior written consent of the Lead Arrangers, provided that no consent of the Lead Arrangers shall be required (a) if any such modification, amendment, consent or waiver shall have been
required by any applicable Law (including, without limitation, the Companies Act of 2006 or the Takeover Rules), the Takeover Panel, any applicable stock exchange, any applicable government or other regulatory authority, or a court of competent
jurisdiction (including, without limitation, the Court) and/or (b) to any waiver of a condition to the Offer where such waiver does not relate to a condition which the Acquisition SPV reasonably considers that it would be entitled to in accordance
with Rule 13.5(a) of the Code, to invoke so as to cause the Offer not to proceed, to lapse, or to be withdrawn; and
(D) receipt by the Administrative Agent of the Offer Closing Certificate, duly signed for and on behalf of the Borrower.
(f) Each Certain Funds Representation shall be true and correct in all material respects on and as of the Effective Date as if made on and as of such date, except to the extent such Certain Funds Representations relate to a particular date, in
which case such Certain Funds Representations shall be true and correct in all material respects as of such particular date; provided that, to the extent that such representations and warranties are qualified by materiality, material adverse
effect or similar language, they shall be true and correct in all respects; it being understood that the truth and accuracy of any other representation or warranty of the Loan Parties under the Loan Documents made on the Effective Date shall not
constitute a condition precedent under this Section 3(f).
(g) As of the Effective Date, no Certain Funds Default has occurred and is continuing or would result from the consummation of the requested Borrowing of the Term U Loans and the Term V Loans or from the application of the proceeds therefrom.
(h) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) Bryan Cave Leighton Paisner LLP, special counsel for the Loan Parties, (ii) Jason Greene, in-house counsel for the Loan
Parties, and (iii) Godfrey & Kahn, S.C., Wisconsin counsel for certain of the Loan Parties, in each case, each (A) dated the Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders and (C) customary in form
and substance for transactions of the type contemplated hereby and reasonably satisfactory to the Administrative Agent and covering such matters as are customary for transactions of the type contemplated hereby and consistent with the opinions
delivered in connection with the Prior Incremental Assumption Agreements (to the extent applicable).
(i) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (A), (B), (C) and (D) below:
(A) (1) a
certificate as to good standing, dated as a recent date, to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party from the Secretary of State (or other similar official) of the jurisdiction
of its organization and (2) a bringdown confirmation, dated not more than one Business Day prior to the Effective Date, as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such
Loan Party from the Secretary of State (or other similar official) of the jurisdiction of its organization;
(B) a copy of the
certificate or articles of incorporation, certificate of limited partnership certificate of formation, or other similar constituting document, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a
recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (B) in the case of a partnership, trust or limited liability company, certified by the Secretary or Assistant Secretary of each such Loan
Party;
(C) a certificate
of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date and certifying,
(w) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery
and performance of this Agreement and, in the case of the Borrower, the borrowing of Term U Loans and Term V Loans, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date,
(x) (1) that attached thereto is a true and complete copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other similar constituting document (as applicable) of such Loan Party, and
the by-laws, limited liability company, partnership agreement, trust agreement or other equivalent governing documents (as applicable) of such Loan Party (collectively, the “Loan Party Organizational Documents”), and (2) the Loan Party
Organizational Documents have been in effect at all times since the date of the resolutions described in clause (A) above, and remain in effect on the Effective Date
(y) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of such Loan Party; and
(z) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(D) certification
of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate delivered pursuant to Section 3(i) hereof; and
(E) a certificate
of a Responsible Officer of the Borrower as to satisfaction of the conditions set forth in Section 3(d) or (e) (as applicable), (f) and (g) hereof.
(j) The Administrative Agent, Amendment Arrangers, the Initial Term U Lender and the Initial Term V Lender shall have received, to the extent invoiced at least three business days prior to the Effective Date, reimbursement or payment of (i) all
reasonable expenses related to syndication of this Agreement, the Term U Loans and the Term V Loans, (ii) the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP, counsel to the Administrative Agent and Amendment Arrangers
and (iii) all other fees separately agreed to in writing with the Borrower.
(k) The Administrative Agent shall have received, for the account of (i) the Initial Term U Lender, an upfront fee in an amount equal to 0.25% of the aggregate principal amount of such Lender’s Term U Loans provided on the Effective Date and (ii)
the Initial Term V Lender, an upfront fee in an amount equal to 0.50% of the aggregate principal amount of such Lender’s Term V Loans provided on the Effective Date.
(l) The Administrative Agent shall have received a Borrowing Request in respect of each of the Term U Loans and the Term V Loans as required by Section 2.03 of the Credit Agreement.
(m) The Administrative Agent shall have received a “Life-of-Loan” flood hazard determination notice for each real property encumbered by a Mortgage, and if such real property is located in a special flood hazard area, (x) a notice about special
flood hazard area status and flood disaster assistance duly executed by the Borrower and the applicable Loan Party and (y) certificates of flood insurance evidencing any such insurance required by the Credit Agreement.
Notwithstanding the foregoing, the obligations of the Initial Term U Lender to make its Term U Loans to the Borrower in an aggregate principal amount equal to its Term U Loan
Commitment and the obligations of the Initial Term V Lender to make its Term V Loans to the Borrower in an aggregate principal amount equal to its Term V Loan Commitment will automatically terminate and this Agreement will have no effect, if each of
the conditions set forth or referred to in Section 7 hereof have not been satisfied at or prior to 5:00 p.m., New York City time, on July 1, 2019.
SECTION 4. Post
Effective Date Amendments. The following amendments (the “Post Effective Date Amendments”) shall become effective on the Post Amendment Effective Date (as defined below):
(a) The Amended Credit Agreement shall be amended as follows:
(i) Section 2.14 of the Amended Credit Agreement shall be amended by (i) adding “(a)” at the beginning thereof and (ii) adding the following new subsection (b) at the end thereof:
“(b) If at any
time the Administrative Agent determines (which determination shall be conclusive absent manifest error) or the Borrower notifies the Administrative Agent that (i) the circumstances set forth in Section 2.14(a)(i) have arisen and such circumstances
are unlikely to be temporary, (ii) the circumstances set forth in Section 2.14(a)(i) have not arisen but the supervisor for the administrator of the LIBO Rate or EURIBOR Rate, as applicable, or a Governmental Authority having jurisdiction over the
Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate or EURIBOR Rate, as applicable, shall no longer be used for determining interest rates for loans or (iii) syndicated loans currently being
executed, or that include language similar to that contained in this Section 2.14, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Adjusted LIBO Rate or EURIBOR Rate, as applicable,
then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate or EURIBOR Rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), as applicable,
that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated in Dollars in the U.S. or in Euros at such time, and shall enter into an amendment to this Agreement to reflect
such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin); provided, that, if such alternate
rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.08, such amendment shall become effective without any further action or consent
of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that such
Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this Section 2.14(b) (but, in the case of the circumstances described in clause (ii) or clause (iii) above, only to the extent the
LIBO Rate or EURIBOR Rate, as applicable, for such Interest Period is not available or published at such time on a current basis), (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing
as, a Eurocurrency Borrowing shall be ineffective and shall be continued as, or converted into, if applicable, an ABR Borrowing and (B) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing.”
(ii) Section 6.12 of the Amended Credit Agreement shall be amended and restated in its entirety as follows:
“Exercise commercially reasonable efforts to maintain corporate ratings from any two of Moody’s, S&P and Fitch Ratings Inc. for the Loans.”
(b) The Amended Collateral Agreement shall be amended as follows:
(i) Section 5.02(a) of the Amended Collateral Agreement shall be amended to replace in its entirety the Third clause with the following:
“Third, to pay principal then due from the Company under the Term Credit Agreement and the Hedging Obligations that constitute Term Obligations, ratably among the parties
entitled thereto in accordance with the amounts of principal and Hedging Obligations then due to such parties; and”
(ii) Section 5.02(a) of the Amended Collateral Agreement shall be amended to delete in its entirety the Fifth clause.
SECTION 5. `PPost Amendment Effective Date Conditions. The Post Effective Date Amendments shall become effective on and as of the date (the “Post Amendment
Effective Date”) on which the following conditions shall have been satisfied:
(a) The Effective Date shall have occurred.
(b) The Administrative Agent (or its counsel) shall have received (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a
signed signature page of this Agreement) that such party has signed a counterpart of this Agreement from each of the Loan Parties, the Initial Term U Lender and the Initial Term V Lender.
(c) All Commitments in respect of the Term Q Facility, the Term R Facility, the Term S Facility, the Term T Facility shall be terminated and all Obligations in respect of the Term Q Facility, the Term R Facility, the Term S Facility, the Term T
Facility shall have been paid in full (or, with respect to such Term Facility, to the extent refinanced with any Incremental Term Facility under Section 2.21 of the Credit Agreement effected after the Effective Date, each Incremental Term
Lender under such Incremental Term Facility agrees to the Post Effective Date Amendments in the applicable Incremental Assumption Agreement or other amendment to the Credit Agreement reasonably satisfactory to the Administrative Agent).
SECTION 6. Post Effective Date Security Documentation. The Borrower shall and shall cause each Material Subsidiary to, within 120 days after the Effective Date (or such longer
period as the Administrative Agent may determine), deliver to the Administrative Agent, each in form and substance reasonably acceptable to the Administrative Agent
(A) written confirmation (which confirmation may be provided in the form of an electronic mail acknowledgment in form and substance reasonably satisfactory to the Administrative Agent) from local counsel in the jurisdiction in which the Mortgaged
Property (which are set forth on Schedule 2 hereto) is located substantially to the effect that: (x) the recording of the existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien
created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement, as amended pursuant to this Amendment, for the benefit of the Secured Parties; and (y) no other documents, instruments, filings,
recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability,
validity or priority of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement, as amended pursuant to this Amendment, for the benefit of the Secured Parties;
OR
(B) (w) amendments to the Mortgages (“Mortgage Amendments”), (x) date down endorsements to the existing title insurance policies relating to the property subject to such Mortgage Amendment, (y) any documents required in connection with the
recording of such Mortgage Amendments and (z) opinions of local counsel with respect to the enforceability, due authorization, execution and delivery of the Mortgage Amendments and other such other matters customarily included in such opinions.
SECTION 7. RReference to and Effect on the Credit Agreement; Confirmation of Guarantors.
(a) On and after the effectiveness of this Agreement, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement, as amended by, and after giving effect to, this Agreement.
(b) Each Loan Document, after giving effect to this Agreement, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed, except that, on and after the effectiveness of this
Agreement, each reference in each of the Loan Documents (including the Collateral Agreement and the other Security Documents) to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and
be a reference to the Credit Agreement, as amended by, and after giving effect to, this Agreement, and each reference to “Lender” therein shall, for the avoidance of doubt, include each holder of any Term U Loans, including the Initial Term U Lender,
and each holder of any Term V Loans, including the Initial Term V Lender, respectively. Without limiting the generality of the foregoing, the Security Documents (in the case of the Mortgages, after giving effect to any amendments thereto required in
connection with the Term U Loans and the Term V Loans) and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, as amended by, and after giving effect to,
this Agreement (in the case of the Mortgages, subject to any limitations contained in the Mortgages on maximum indebtedness or maximum indebtedness permitted to be secured thereby), in each case subject to the terms thereof.
(c) Each Loan Party hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party, (ii) ratifies and reaffirms each grant of a
lien on, or security interest in, its property made pursuant to the Loan Documents (including, without limitation, the grant of security made by such Loan Party pursuant to the Collateral Agreement) and confirms that (in the case of the Mortgages, if
any after giving effect to any amendments required in connection with the Term U Loans and the Term V Loans) such liens and security interests continue to secure the Obligations under the Loan Documents, including, without limitation, all Obligations
resulting from or incurred pursuant to the Term U Loans and Term V Loans (in the case of the Mortgages, subject to any limitations contained in the Mortgages on maximum indebtedness or maximum indebtedness permitted to be secured thereby), in each
case subject to the terms thereof and (iii) in the case of each Guarantor, ratifies and reaffirms its guaranty of the Obligations pursuant to Article II of the Collateral Agreement.
(d) The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, or
constitute a waiver of any provision of any of the Loan Documents.
(e) This Agreement is a Loan Document.
SECTION 8. Initial Term U Lender and Initial Term V Lender.
(a) Each of the Initial Term U Lender and the Initial Term V Lender (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 5.04 thereof
and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon any Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) represents and warrants that its name set forth on its signature
page hereto is its legal name; (iv) confirms that it is not the Borrower or any of its Subsidiaries or an Affiliate of any of them; (v) appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (vi) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender; and (vii) attaches any U.S. Internal Revenue Service forms required under Section 2.17 of the Credit Agreement.
(b) On and after the Effective Date, each of the Initial Term U Lender and the Initial Term V Lender shall be a party to the Credit Agreement as a Lender and shall have all of the rights and obligations of a Lender thereunder.
All notices and other communications provided for hereunder or under the Loan Documents to the Initial Term U Lender or to the Initial Term V Lender shall be to its address as set forth in the administrative questionnaire such Lender has furnished to
the Administrative Agent.
SECTION 9. Costs, Expenses. The Borrower agrees to pay the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP, counsel to the Administrative Agent and
the Amendment Arrangers.
SECTION 10. No Novation. This Agreement shall not extinguish the Obligations for the payment of money outstanding under the Credit Agreement or discharge or release the Lien or
priority of any Loan Document or any other security therefor or any guarantee thereof, and the Liens and security interests existing immediately prior to the Effective Date in favor of the Administrative Agent for the benefit of the Secured Parties
securing payment of the Obligations are in all respects continuing and in full force and effect with respect to all Obligations. Nothing herein contained shall be construed as a novation of any of the Loan Documents or a substitution or novation of
the Obligations outstanding under the Credit Agreement or instruments guaranteeing or securing the same, which instruments shall remain and continue in full force and effect. Nothing expressed or implied in this Agreement or any other document
contemplated hereby shall be construed as a release or other discharge of any Loan Party under the Credit Agreement or any other Loan Document from any of its obligations and liabilities thereunder, and except as expressly provided, such obligations
and liabilities are in all respects continuing with only the terms being modified as provided in this Agreement.
SECTION 11. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 3. Delivery of an executed counterpart to this
Agreement by facsimile transmission (or other electronic transmission pursuant to procedures approved by the Administrative Agent) shall be effective as delivery of a manually signed original.
SECTION 12. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above
written.
BERRY GLOBAL, INC.
By: /s/ Mark W. Miles
Name: Mark W. Miles
Title: Chief Financial Officer and Treasurer
BERRY GLOBAL GROUP, INC.
By: /s/ Mark W. Miles
Name: Mark W. Miles
Title: Chief Financial Officer and Treasurer
AEROCON, LLC
AVINTIV ACQUISITION CORPORATION
AVINTIV INC.
AVINTIV SPECIALTY MATERIALS INC.
BERRY FILM PRODUCTS ACQUISITION COMPANY, INC.
BERRY FILM PRODUCTS COMPANY, INC.
BERRY PLASTICS ACQUISITION CORPORATION V
BERRY PLASTICS ACQUISITION CORPORATION XII
BERRY PLASTICS ACQUISITION CORPORATION XIII
BERRY GLOBAL FILMS, LLC
BERRY PLASTICS ACQUISITION LLC X
BERRY PLASTICS DESIGN, LLC
BERRY PLASTICS FILMCO, INC.
BERRY PLASTICS 1K, LLC
BERRY PLASTICS OPCO, INC.
BERRY PLASTICS SP, INC.
BERRY PLASTICS TECHNICAL SERVICES, INC.
BERRY SPECIALTY TAPES, LLC
BERRY STERLING CORPORATION
BPREX BRAZIL HOLDING INC.
BPREX CLOSURE SYSTEMS, LLC
BPREX CLOSURES KENTUCKY INC.
BPREX CLOSURES, LLC
BPREX DELTA INC.
BPREX HEALTHCARE BROOKVILLE INC.
BPREX HEALTHCARE PACKAGING INC.
BPREX PLASTIC PACKAGING INC.
BPREX PLASTICS SERVICES COMPANY INC.
BPREX PRODUCT DESIGN AND ENGINEERING INC.
BPREX SPECIALTY PRODUCTS PUERTO RICO INC.
CAPLAS LLC
CAPLAS NEPTUNE, LLC
CAPTIVE PLASTICS HOLDINGS, LLC
CAPTIVE PLASTICS, LLC
CARDINAL PACKAGING, INC.
CHICOPEE, INC.
COVALENCE SPECIALTY ADHESIVES LLC
COVALENCE SPECIALTY COATINGS LLC
CPI HOLDING CORPORATION
DOMINION TEXTILE (USA), L.L.C.
FABRENE, L.L.C.
FIBERWEB GEOS, INC.
FIBERWEB, LLC
KERR GROUP, LLC
KNIGHT PLASTICS, LLC
OLD HICKORY STEAMWORKS, LLC
PACKERWARE, LLC
PESCOR, INC.
PGI EUROPE, INC.
PGI POLYMER, INC.
PLIANT INTERNATIONAL, LLC
PLIANT, LLC
POLY-SEAL, LLC
PRIME LABEL & SCREEN INCORPORATED
PRISTINE BRANDS CORPORATION
PROVIDENCIA USA, INC.
ROLLPAK CORPORATION
SAFFRON ACQUISITION, LLC
SEAL FOR LIFE INDUSTRIES, LLC
SETCO, LLC
SUN COAST INDUSTRIES, LLC
UNIPLAST HOLDINGS, LLC
UNIPLAST U.S., INC.
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST, INC.
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel and Secretary
LADDAWN, INC.
DUMPLING ROCK, LLC
ESTERO PORCH, LLC
LAMB’S GROVE, LLC
MILLHAM, LLC
SUGDEN, LLC
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President
GRAFCO INDUSTRIES LIMITED PARTNERSHIP
By: Caplas Neptune, LLC, its General Partner
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel and Secretary
CHOCKSETT ROAD LIMITED PARTNERSHIP
By: Berry Global, Inc., its General Partner
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President, General Counsel and Secretary
CHOCKSETT ROAD REALTY TRUST
By: Laddawn, Inc., its Trustee
By: /s/ Jason K. Greene
Name: Jason K. Greene
Title: Executive Vice President
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as Administrative Agent
as Administrative Agent
By: /s/ John D. Toronto
Name: John D. Toronto
Title: Authorized Signatory
By: /s/ Emerson Almeida
Name: Emerson Almeida
Title: Authorized Signatory
GOLDMAN SACHS BANK USA,
as Initial Term U Lender
By: /s/ Robert Ehudin
Name: Robert Ehudin
Title: Authorized Signatory
GOLDMAN SACHS BANK USA,
as Initial Term V Lender
By: /s/ Robert Ehudin
Name: Robert Ehudin
Title: Authorized Signatory
Schedule 1A
Initial Term U Lender Term U Loan Commitment
Goldman Sachs Bank USA $4,250,000,000
Schedule 1B
Initial Term V Lender Term V Loan Commitment
Goldman Sachs Bank USA €1,075,000,000
Schedule 2
1. 111 Excellence Lane, Mooresville, NC 28115
2. 1020 and 870 Shenandoah Village Dr., Waynesboro, VA 22980
3. 1203 Chicopee Road, Benson, NC 27504
4. 20 Elmwood Ave., Mountain Top, PA 18707
5. 70 Old Hickory Blvd., Old Hickory, TN 37138
6. 531 East Fourth Street, Augusta, KY 41002
Exhibit A
SECOND AMENDED AND RESTATED
TERM LOAN CREDIT AGREEMENT
Dated as of April 3, 2007,
Among
BERRY GLOBAL GROUP, INC.,
BERRY GLOBAL, INC.,
as Borrower,
THE LENDERS PARTY HERETO,
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as Collateral Agent and Administrative Agent
____________________
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
Definitions
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SECTION 1.01.
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Defined Terms
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|
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SECTION 1.02.
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Terms Generally
|
|
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SECTION 1.03.
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Effectuation of Transactions
|
|
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SECTION 1.04.
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Senior Debt
|
|
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SECTION 1.05.
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Currency Equivalents Generally
|
|
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SECTION 1.06.
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Lending Office
|
41
|
ARTICLE II
The Credits
The Credits
|
SECTION 2.01.
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Commitments
|
|
|
SECTION 2.02.
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Loans and Borrowings
|
|
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SECTION 2.03.
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Requests for Borrowings
|
|
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SECTION 2.04.
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[Reserved]
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|
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SECTION 2.05.
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[Reserved]
|
|
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SECTION 2.06.
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Funding of Borrowings
|
|
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SECTION 2.07.
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Interest Elections
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|
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SECTION 2.08.
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Termination of Term Loan Commitments
|
|
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SECTION 2.09.
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Repayment of Loans; Evidence of Debt
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|
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SECTION 2.10.
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Repayment of Term Loans
|
|
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SECTION 2.11.
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Prepayment of Loans
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47
|
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SECTION 2.12.
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Fees
|
|
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SECTION 2.13.
|
Interest
|
49
|
|
SECTION 2.14.
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Alternate Rate of Interest
|
49
|
|
SECTION 2.15.
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Increased Costs
|
50
|
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SECTION 2.16.
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Break Funding Payments
|
|
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SECTION 2.17.
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Taxes
|
51
|
|
SECTION 2.18.
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Payments Generally; Pro Rata Treatment; Sharing of Set-offs
|
53
|
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SECTION 2.19.
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Mitigation Obligations; Replacement of Lenders
|
54
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SECTION 2.20.
|
Illegality
|
55
|
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SECTION 2.21.
|
Incremental Commitments
|
|
ARTICLE III
Representations and Warranties
Representations and Warranties
|
SECTION 3.01.
|
Organization; Powers
|
57
|
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SECTION 3.02.
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Authorization
|
57
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|
SECTION 3.03.
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Enforceability
|
|
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SECTION 3.04.
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Governmental Approvals
|
|
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SECTION 3.05.
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Financial Statements
|
58
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SECTION 3.06.
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No Material Adverse Effect
|
58
|
|
SECTION 3.07.
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Title to Properties; Possession Under Leases
|
58
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SECTION 3.08.
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Subsidiaries
|
|
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SECTION 3.09.
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Litigation; Compliance with Laws
|
59
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SECTION 3.10.
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Federal Reserve Regulations
|
59
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SECTION 3.11.
|
Investment Company Act
|
|
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SECTION 3.12.
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Use of Proceeds
|
|
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SECTION 3.13.
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Tax Returns
|
|
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SECTION 3.14.
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No Material Misstatements
|
60
|
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SECTION 3.15.
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Employee Benefit Plans
|
|
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SECTION 3.16.
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Environmental Matters
|
61
|
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SECTION 3.17.
|
Security Documents
|
61
|
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SECTION 3.18.
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Location of Real Property and Leased Premises
|
62
|
|
SECTION 3.19.
|
Solvency
|
|
|
SECTION 3.20.
|
Labor Matters
|
63
|
|
SECTION 3.21.
|
Insurance
|
63
|
|
SECTION 3.22.
|
No Default
|
63
|
|
SECTION 3.23.
|
Intellectual Property; Licenses, Etc
|
63
|
|
SECTION 3.24.
|
[Reserved]
|
|
|
SECTION 3.25.
|
Sanctioned Persons; Anti-Money Laundering; Etc.
|
|
|
SECTION 3.26.
|
Acquisition Documents
|
|
ARTICLE IV
[Reserved].
[Reserved].
ARTICLE V
Affirmative Covenants
Affirmative Covenants
|
SECTION 5.01.
|
Existence; Businesses and Properties
|
65
|
|
SECTION 5.02.
|
Insurance
|
65
|
|
SECTION 5.03.
|
Taxes
|
66
|
|
SECTION 5.04.
|
Financial Statements, Reports, etc
|
66
|
|
SECTION 5.05.
|
Litigation and Other Notices
|
68
|
|
SECTION 5.06.
|
Compliance with Laws
|
68
|
|
SECTION 5.07.
|
Maintaining Records; Access to Properties and Inspections
|
|
|
SECTION 5.08.
|
Use of Proceeds
|
69
|
|
SECTION 5.09.
|
Compliance with Environmental Laws
|
69
|
|
SECTION 5.10.
|
Further Assurances; Additional Security
|
69
|
|
SECTION 5.11.
|
Conditions
Subsequent
|
71
|
ARTICLE VI
Negative Covenants
Negative Covenants
|
SECTION 6.01.
|
Indebtedness
|
71
|
|
SECTION 6.02.
|
Liens
|
74
|
|
SECTION 6.03.
|
Sale and Lease-Back Transactions
|
|
|
SECTION 6.04.
|
Investments, Loans and Advances
|
|
|
SECTION 6.05.
|
Mergers, Consolidations, Sales of Assets and Acquisitions
|
|
|
SECTION 6.06.
|
Dividends and Distributions
|
83
|
|
SECTION 6.07.
|
Transactions with Affiliates
|
|
|
SECTION 6.08.
|
Business of the Borrower and the Subsidiaries
|
86
|
|
SECTION 6.09.
|
Limitation on Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.
|
86
|
|
SECTION 6.10.
|
Fiscal Year; Accounting
|
88
|
|
SECTION 6.11.
|
Qualified CFC Holding Companies
|
88
|
|
SECTION 6.12.
|
Rating
|
|
ARTICLE VIA
Holdings Covenants
Holdings Covenants
ARTICLE VII
Events of Default
Events of Default
|
SECTION 7.01.
|
Events of Default
|
89
|
|
SECTION 7.02.
|
Exclusion of Immaterial Subsidiaries
|
91
|
ARTICLE VIII
The Agents
The Agents
|
SECTION 8.01.
|
Appointment
|
91
|
|
SECTION 8.02.
|
Delegation of Duties
|
|
|
SECTION 8.03.
|
Exculpatory Provisions
|
93
|
|
SECTION 8.04.
|
Reliance by Administrative Agent
|
|
|
SECTION 8.05.
|
Notice of Default
|
94
|
|
SECTION 8.06.
|
Non-Reliance on Agents and Other Lenders
|
94
|
|
SECTION 8.07.
|
Indemnification
|
|
|
SECTION 8.08.
|
Agent in Its Individual Capacity
|
95
|
|
SECTION 8.09.
|
Successor Administrative Agent
|
95
|
|
SECTION 8.10.
|
Agents and Arrangers
|
95
|
ARTICLE IX
Miscellaneous
Miscellaneous
|
SECTION 9.01.
|
Notices; Communications
|
|
|
SECTION 9.02.
|
Survival of Agreement
|
|
|
SECTION 9.03.
|
Binding Effect
|
97
|
|
SECTION 9.04.
|
Successors and Assigns
|
97
|
|
SECTION 9.05.
|
Expenses; Indemnity
|
100
|
|
SECTION 9.06.
|
Right of Set-off
|
101
|
|
SECTION 9.07.
|
Applicable Law
|
|
|
SECTION 9.08.
|
Waivers; Amendment
|
|
|
SECTION 9.09.
|
Interest Rate Limitation
|
103
|
|
SECTION 9.10.
|
Entire Agreement
|
103
|
|
SECTION 9.11.
|
WAIVER OF JURY TRIAL
|
|
|
SECTION 9.12.
|
Severability
|
|
|
SECTION 9.13.
|
Counterparts
|
104
|
|
SECTION 9.14.
|
Headings
|
104
|
|
SECTION 9.15.
|
Jurisdiction; Consent to Service of Process
|
104
|
|
SECTION 9.16.
|
Confidentiality
|
|
|
SECTION 9.17.
|
Platform; Borrower Materials
|
105
|
|
SECTION 9.18.
|
Release of Liens and Guarantees
|
105
|
|
SECTION 9.19.
|
PATRIOT Act Notice
|
|
|
SECTION 9.20.
|
Intercreditor Agreements and Collateral Agreement
|
|
|
SECTION 9.21.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
106
|
Exhibits and Schedules
|
Exhibit A
|
Form of Assignment and Acceptance
|
|
Exhibit B
|
Form of Solvency Certificate
|
|
Exhibit C
|
Form of Borrowing Request
|
|
Exhibit D
|
[Reserved]
|
|
Exhibit E
|
Form of Collateral Agreement
|
|
Schedule 1.01(a)
|
Certain U.S. Subsidiaries
|
|
Schedule 1.01(c)
|
Mortgaged Properties
|
|
Schedule 1.01(d)
|
Immaterial Subsidiaries
|
|
Schedule 1.01(i)
|
Unrestricted Subsidiaries
|
|
Schedule 2.01
|
Commitments
|
|
Schedule 3.01
|
Organization and Good Standing
|
|
Schedule 3.04
|
Governmental Approvals
|
|
Schedule 3.07(b)
|
Possession under Leases
|
|
Schedule 3.08(a)
|
Subsidiaries
|
|
Schedule 3.08(b)
|
Subscriptions
|
|
Schedule 3.13
|
Taxes
|
|
Schedule 3.16
|
Environmental Matters
|
|
Schedule 3.21
|
Insurance
|
|
Schedule 3.23
|
Intellectual Property
|
|
Schedule 5.13
|
Post-Closing Interest Deliveries
|
|
Schedule 6.01
|
Indebtedness
|
|
Schedule 6.02(a)
|
Liens
|
|
Schedule 6.04
|
Investments
|
|
Schedule 6.05
|
Mergers, Consolidations, Sales of Assets and Acquisitions
|
|
Schedule 6.07
|
Transactions with Affiliates
|
|
Schedule 9.01
|
Notice Information
|
Liens
This SECOND AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT was entered into as of April 3, 2007 (as amended, amended and restated, modified,
supplemented, extended or renewed from time to time prior to the date hereof, this “Agreement”), among BERRY GLOBAL GROUP, INC. (formerly known as Berry Plastics Group, Inc.), a Delaware corporation (“Holdings”),
BERRY GLOBAL, INC. (formerly known as Berry Plastics Holding Corporation), a Delaware corporation (“Berry”), as the borrower (the “Borrower”), the LENDERS party hereto from time to time and CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH (formerly known as Credit Suisse, Cayman Islands Branch), as administrative agent and collateral agent (in such capacities, the “Administrative Agent”) for the Lenders;
WHEREAS, pursuant to the RPC Incremental Amendment, the Borrower,
the Required Lenders, and the Administrative Agent, have amended this Agreement as provided for herein subject to the terms and conditions set forth in the RPC Incremental Amendment;
NOW, THEREFORE, the Borrower, the Lenders and the other parties hereto hereby agree that, effective as of the RPC Incremental Amendment Effective Date and upon fulfillment of the conditions set forth in the RPC Incremental Amendment,
this Agreement is amended to read as follows:
ARTICLE I
Definitions
Definitions
SECTION 1.01. Defined
Terms. As used in this Agreement, the following terms shall have the meanings specified below:
“ABL Assets” shall mean any Accounts and Inventory (as such terms are defined in the Revolving Credit Agreement) of the Borrower or any Subsidiary.
“ABR” shall mean, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 1/2 of
1%, (b) the rate of interest in effect for such day as announced from time to time by Credit Suisse as its “prime rate” at its principal office in New York, New York and notified to the Borrower (the “Prime Rate”) and (c) the
daily ICE LIBOR (as defined below) (provided that, for the avoidance of doubt, the ICE LIBOR for any day shall be based on the rate determined on such day at approximately 11:00 a.m., London time) for a one month interest period plus 1%. Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate for Dollar denominated Loans
shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.
“ABR Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.
“Acquisition” shall mean the acquisition by the Borrower indirectly through Acquisition SPV of up to 100% of the outstanding shares of Target, which may be effected by means of a Scheme
under which the Target Shares will be transferred and the Borrower will, directly or indirectly, become the holder of such transferred Target Shares or pursuant to a public offer by, or made on behalf of, the Borrower in accordance with the
Takeover Code and the provisions of the Companies Act of 2006 for the Borrower to acquire, directly or indirectly, all of the Target Shares by way of an Offer.
“Acquisition Closing Date” shall mean the date the Acquisition is consummated.
“Acquisition Documents” shall mean (i) if the Acquisition is to be effected by means of the Scheme, the Scheme Documents; or (ii) if the Acquisition is to be effected by means of the
Offer, the Offer Documents.
“Acquisition Incremental Term Loans” has the meaning set forth in Section 2.21(c).
“Acquisition SPV” shall mean Berry Global International Holdings Limited, a newly incorporated special purpose vehicle.
“Acquisition Transaction Expenses” means any fees or expenses incurred or paid by Holdings, the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries in
connection with the Acquisition Transactions, this Agreement and the other Loan Documents (including expenses in connection with Swap Agreements) and the transactions contemplated hereby and thereby.
“Acquisition Transactions” shall mean (a) the consummation of the Acquisition; (b) the incurrence of Indebtedness in connection with the Acquisition; (c) the repayment of certain
indebtedness of the Target in connection with the Acquisition; and (d) the payment of all Acquisition Transaction Expenses.
“Additional Mortgage” shall have the meaning assigned to such term in Section 5.10(c).
“Adjusted LIBO Rate” shall mean, (i) with respect to any
Eurocurrency Borrowing for any Interest Period to the extent denominated in Dollars, an interest rate per annum equal to (a) the LIBO Rate in effect for such
Interest Period divided by (b) one minus the Statutory Reserves applicable to such Eurocurrency Borrowing, if any.
“Administrative Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
“Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.12(a).
“Administrative Questionnaire” shall mean an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified.
“Agents” shall mean the Administrative Agent and the Collateral Agent.
“Agreement” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
“Amendment” shall
mean that certain Amendment, dated as of April 10, 2019, by and among Holdings, the Borrower, the Administrative Agent, the Lenders party thereto and the Subsidiary Loan Parties party thereto.
“Amendment Arrangers” shall have the meaning assigned to such term in the Amendment.
“Amendment Effective Date” shall have the meaning assigned to such term in the Amendment.
(a) with respect to Term Q Loans, 2.25% per annum in the case of any Eurocurrency Loan and 1.25% per annum in the case of any ABR Loan;
(b) with respect to Term R Loans, 2.25% per annum in the case of any Eurocurrency Loan and 1.25% per annum in the case of any ABR Loan;
(c) with respect to Term S Loans, 2.00% per annum in the case of any Eurocurrency Loan and 1.00% per annum in the case of any ABR Loan; and
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(d) with respect to Term T Loans, 2.00% per annum in the case of any Eurocurrency Loan and 1.00% per annum in the case of any ABR Loan;
(e) with respect to Term U Loans,
2.50% per annum in the case of any Eurocurrency Loan and 1.50% per annum in the case of any ABR Loan; and
(f) with respect to Term V Loans,
2.50% per annum;
Notwithstanding the foregoing, the Applicable Margin with respect to any Incremental Term Loan and any Incremental Term Loan Commitment of any Series means the rate per annum for such Incremental Term
Loan and Incremental Term Loan Commitment agreed to by the Borrower and the respective Incremental Term Lender or Lenders in the related Incremental Assumption Agreement for such Series.
“Applicable Period” means an Excess Cash Flow Period or an Excess Cash Flow Interim Period, as the case may be.
“Approved Fund” shall have the meaning assigned to such term in Section 9.04(b).
“Asset Sale” shall mean any loss, damage, destruction or condemnation of, or any sale, transfer or other disposition (including any sale and leaseback of assets and any mortgage or
lease of real property) to any person of any asset or assets of the Borrower or any Subsidiary, including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division.
“Assignee” shall have the meaning assigned to such term in Section 9.04(b).
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an Assignee, and accepted by the Administrative Agent and the Borrower (if required by
such assignment and acceptance), in the form of Exhibit A or such other form as shall be approved by the Administrative Agent.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European
Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. Sec. 1010.230.
“Berry” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
“Berry Holdings” shall mean Berry Plastics Group, Inc., which prior to the Closing Date was merged with and into Covalence Holdings.
“Berry Plastics” means Berry Plastics Opco, Inc., that certain wholly owned subsidiary of Berry.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.
“Board of Directors” shall mean as to any person, the board of directors or other governing body of such person, or, if such person is owned or managed by a single entity, the board of
directors or other governing body of such person.
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“Borrower” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
“Borrower Materials” shall have the meaning assigned to such term in Section 9.17.
“Borrowing” shall mean a group of Loans of a single Type and made on a single date and, in the case of Eurocurrency Loans, as to which a single Interest
Period is in effect.
“Borrowing Minimum” shall mean $, with respect to Loans denominated in Dollars, $5.0 million and, with respect to Loans denominated in Euro, €5.0 million.
“Borrowing Multiple” shall mean $, with respect to the Term Q Loans, Term R Loans, Term S Loans, Term T Loans and Term U Loans, $1.0 million and, with respect to the Term V Loans, €1.0 million.
“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit
C.
“Budget” shall have the meaning assigned to such term in Section 5.04(e).
“Business Combination” shall mean (i) the merger of Berry Holdings with and into Covalence Specialty Materials Holding Corp., (ii) the contribution by
Materials Holding Corp. of all of the capital stock of Berry to Covalence Specialty Materials Corp., and (iii) the merger of Covalence Specialty Materials Corp into Berry, with Berry as the surviving corporation, pursuant to the Agreement and
Plan of Merger and Corporate Reorganization between Covalence and Holdings and Berry Holdings dated March 9, 2007.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or in Brussels are authorized or required by law to remain closed; provided, that when used in connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market.
“Capital Expenditures” shall mean, for any person in respect of any period, the aggregate of all expenditures incurred by such person during such period that, in accordance with GAAP,
are or should be included in “additions to property, plant or equipment” or similar items reflected in the statement of cash flows of such person, provided, however, that Capital Expenditures for the Borrower and
the Subsidiaries shall not include:
(a) expenditures
to the extent they are made with proceeds of the issuance of Equity Interests of Holdings after the Closing Date or funds that would have constituted any Net Proceeds under clause (a) of the definition of the term “Net Proceeds” (but for the
application of the first proviso to such clause (a)),
(b) expenditures
with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost,
destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Borrower and the Subsidiaries within 15
months of receipt of such proceeds (or, if not made within such period of 15 months, are committed to be made during such period),
(c) interest
capitalized during such period,
(d) expenditures
that are accounted for as capital expenditures of such person and that actually are paid for by a third party (excluding Holdings, the Borrower or any Subsidiary thereof) and for which neither Holdings, the Borrower nor any Subsidiary has
provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period),
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(e) the book
value of any asset owned by such person prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such person reusing or beginning to reuse such asset during such
period without a corresponding expenditure actually having been made in such period; provided, that (i) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the
period that such expenditure actually is made and (ii) such book value shall have been included in Capital Expenditures when such asset was originally acquired,
(f) the purchase
price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (i) used or surplus equipment traded in at the time of such purchase and (ii) the proceeds of a concurrent sale of used or
surplus equipment, in each case, in the ordinary course of business,
(g) Investments
in respect of a Permitted Business Acquisition,
(h) the Business
Combination, or
(i) the purchase
of property, plant or equipment made within 15 months of the sale of any asset to the extent purchased with the proceeds of such sale (or, if not made within such period of 15 months, to the extent committed to be made during such period).
“Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under GAAP and, for purposes hereof, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Cash Interest Expense” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, Interest Expense for such period, less the sum of, without
duplication, (a) pay in kind Interest Expense or other noncash Interest Expense (including as a result of the effects of purchase accounting), (b) to the extent included in Interest Expense, the amortization of any financing fees paid by, or on
behalf of, the Borrower or any Subsidiary, including such fees paid in connection with the Transactions or upon entering into a Permitted Receivables Financing, (c) the amortization of debt discounts, if any, or fees in respect of Swap Agreements
and (d) cash interest income of Borrower and its Subsidiaries for such period; provided, that Cash Interest Expense shall exclude any one time financing fees, including those paid in connection with the Transactions, or upon
entering into a Permitted Receivables Financing or any amendment of this Agreement.
“Certain Funds Default” means, in each case, an Event of Default arising under sub-paragraph (i) to (iii) below but only to the extent that such Event of Default relates to, or is made
in relation to, Holdings, the Borrower, Berry Plastics or Acquisition SPV (and not in respect of any member of the Target Group or any subsidiary of Holdings (other than the Borrower, Berry Plastics or Acquisition SPV) and excluding any procurement
obligation on the part of Holdings, the Borrower, Berry Plastics or Acquisition SPV in respect of any member of the Target Group or any subsidiary of Holdings (other than the Borrower, Berry Plastics or Acquisition SPV)):
(i) Section 7.01(g) (but only in respect of clauses (a)(i), (a)(ii) and (a)(iv) of the definition of Change in Control);
(iii) Section 7.01(h) (but excluding, in relation to involuntary proceedings, any Event of Default caused by a frivolous or vexatious (and, in either case,
lacking in merit) action, proceeding or petition in respect of which no order or decree in respect of such involuntary proceeding shall have been entered); or
(iii) Section 7.01(i).
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“Certain Funds Period” means the period beginning on March 8, 2019 and ending on the earliest
to occur of:
(a) where the Acquisition
proceeds by way of a Scheme, the earliest of: (i) the tenth Business Day following the RPC Incremental Amendment Effective Date if the Rule 2.7 Announcement has not been made; (ii) the date on which the Scheme lapses or is withdrawn with the
consent of the Takeover Panel or by order of the Court (unless, on or prior to that date, Acquisition SPV has notified the Joint Lead Arrangers that it intends to launch an Offer and the Rule 2.7 Announcement for the Offer has been released);
(iii) the date on which the Target has become a direct or indirect wholly owned subsidiary of Holdings and all of the consideration payable under the Acquisition in respect of the shares of the Target or proposals made or to be made under Rule
15 of the Takeover Code in connection with the Acquisition, has in each case been paid in full, including in respect of (A) the acquisition of any shares in the Target to be acquired after the RPC Incremental Amendment Effective Date (including
pursuant to the Target’s amended articles of association), and (B) any proposal made or to be made in connection with the Acquisition pursuant to Rule 15 of the Takeover Code; and (iv) if the Scheme has not become effective prior to such time,
11:59 p.m. (London time) on the Longstop Date (or such later date as may be agreed by the Administrative Agent (acting on the instructions of all Lenders)), or
(b) where the Acquisition is to
be consummated pursuant to an Offer, the earliest of: (i) the tenth Business Day following the RPC Incremental Amendment Effective Date if the Rule 2.7 Announcement has not been made; (ii) the date on which the Offer lapses, terminates or is
withdrawn with the consent of the Takeover Panel or a court order (unless, on or prior to that date, Acquisition SPV has notified the Joint Lead Arrangers that it intends to launch a Scheme and the Rule 2.7 Announcement for the Scheme has been
released); (iii) the date on which the Target has become a direct or indirect wholly owned subsidiary of Holdings and all of the consideration payable under the Offer in respect of the shares of the Target or proposals made or to be made under
Rule 15 of the Takeover Code in connection with the Acquisition, has in each case been paid in full, including in respect of (A) the acquisition of any shares in the Target to be acquired after the RPC Incremental Amendment Effective Date
(including pursuant to a Squeeze-Out Procedure), and (B) any proposal made or to be made in connection with the Acquisition pursuant to Rule 15 of the Takeover Code; and (iv) if the Offer has not been declared wholly unconditional prior to such
time, 11:59 p.m. (London time) on the Longstop Date (or such later date as may be agreed by the Administrative Agent (acting on the instructions of all Lenders));
provided that a switch from a Scheme to an Offer or from an Offer to a Scheme (or, for the
avoidance of doubt, any amendments to the terms or conditions of a Scheme or an Offer) shall not constitute a lapse, termination or withdrawal for the purpose of this definition.
“Certain Funds Representations” means the representations and warranties contained in Section 3.01(a), Section 3.01(c), Section 3.02(a),
Section 3.02(b)(i) (but excluding the representation and warranty under Section 3.02(b)(i)(C)), except to the extent such representation and warranty relates to a violation of any existing debt finance documents entered into by Holdings, the
Borrower, the Acquisition SPV or Berry Plastics, in each case on or before March 8, 2019), Section 3.02(b)(ii) (only to the extent such representation and warranty relates to any existing debt finance documents entered into by Holdings, the
Borrower, Acquisition SPV or Berry Plastics, in each case on or before March 8, 2019), Section 3.03, Section 3.04, Section 3.10(b), Section 3.11, and Section 3.26 in each case with respect to Holdings, the Borrower, Berry Plastics and Acquisition
SPV only (and not in respect of any member of the Target Group or Contributed Group or any other Restricted Subsidiary and excluding any procurement obligation on the part of the Original Obligors in respect of any member of the Target Group or any
subsidiary of Holdings (other than the Borrower, Berry Plastics or Acquisition SPV)).
A “Change in Control” shall be deemed to occur if:
(a) at any time,
(i) Holdings shall fail to own, directly or indirectly, beneficially and of record, 100% of the issued and outstanding Equity Interests of the Borrower, (ii) a majority of the seats (other than vacant seats) on the Board of Directors of Holdings
shall at any time be occupied by persons who were neither (A) nominated by the board of directors of Holdings or a member of the Management Group, (B) appointed by directors so nominated nor (C) appointed by
a member of the Management Group, (iii) “change of control” (or similar event) shall occur under the Existing Second Lien Notes Indentures, any Material Indebtedness or any Permitted Refinancing Indebtedness in respect of any of the foregoing or
any Disqualified Stock (to the extent the aggregate amount of the applicable Disqualified Stock exceeds $35 million) or (iv) the Borrower shall fail to own, directly or indirectly, beneficially and of record, 100% of the issued and outstanding
Equity Interests of Berry Plastics and/or Acquisition SPV;
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(b) [reserved];
or
(c) any person or
“group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting interest in Holdings’ Equity Interests.
“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any Lending Office of such Lender or by such Lender’s holding company, if any) with any written request, guideline
or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date.
“Charges” shall have the meaning assigned to such term in Section 9.09.
“Closing Date” shall mean April 3, 2007.
“Collateral” shall mean all the “Collateral” as defined in any Security Document and shall also include the Mortgaged Properties and all other property that is subject to any Lien in
favor of the Collateral Agent or any Subagent for the benefit of the Lenders pursuant to any Security Documents.
“Collateral Agent” means the party acting as collateral agent for the Secured Parties under the Security Documents. On the Closing Date, the Collateral Agent is the same person as the
Administrative Agent. Unless the context otherwise requires, the term “Administrative Agent” as used herein shall, unless the context otherwise requires, include the Collateral Agent, notwithstanding various specific references to the Collateral
Agent herein.
“Collateral Agreement” shall mean the Second Amended and Restated First Lien Guarantee and Collateral Agreement, dated as of the Closing Date, as amended, supplemented or otherwise
modified from time to time, in the form of Exhibit E, among Holdings, the Borrower, each Subsidiary Loan Party, the Collateral Agent and Bank of America, N.A. as collateral agent.
“Collateral and Guarantee Requirement” shall mean the requirement that:
(a) on the
Closing Date, the Collateral Agent shall have received (i) from Holdings, the Borrower and each Person that is a Subsidiary Loan Party pursuant to clause (a) of the definition thereof, a counterpart of the Collateral Agreement duly executed and
delivered on behalf of such Person and (ii) an Acknowledgment and Consent in the form attached to the Collateral Agreement, executed and delivered by each issuer of Pledged Collateral (as defined in the Collateral Agreement) on the Closing Date,
if any, that is not a Loan Party;
(b) on or before
the Closing Date, (i) the Collateral Agent shall have received (A) a pledge of all the issued and outstanding Equity Interests of (x) the Borrower and (y) each Person that is a Domestic Subsidiary on the Closing Date (other than Subsidiaries
listed on Schedule 1.01(a)) owned on the Closing Date directly by or on behalf of the Borrower or any Subsidiary Loan Party and (B) a pledge of 65% of the outstanding Equity Interests of (1) each “first tier” Foreign Subsidiary
directly owned by any Loan Party (except for NIM Holdings Limited, Berry Plastics Asia Pte. Ltd., and Ociesse s.r.l., Berry Plastics Acquisition Corporation II, and Berry Plastics Acquisition Corporation XIV, LLC), and (2) each “first tier”
Qualified CFC Holding Company directly owned by any Loan Party and (ii) the Collateral Agent (or its bailee pursuant to the Senior Fixed Collateral Intercreditor Agreement or the Senior Lender Intercreditor Agreement)
shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;
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(c) (i) all
Indebtedness of the Borrower and each Subsidiary having, in the case of each instance of Indebtedness, an aggregate principal amount in excess of $5.0 million (other than (A) intercompany current liabilities incurred in the ordinary course of
business in connection with the cash management operations of Holdings and its Subsidiaries or (B) to the extent that a pledge of such promissory note or instrument would violate applicable law) that is owing to any Loan Party shall be evidenced
by a promissory note or an instrument and shall have been pledged pursuant to the Collateral Agreement (or other applicable Security Document as reasonably required by the Administrative Agent) (which pledge, in the case of any intercompany note
evidencing debt owed by a Foreign Subsidiary to a Loan Party, shall be limited to 65% of the amount outstanding thereunder), and (ii) the Collateral Agent (or its bailee pursuant to the Senior Fixed Collateral Intercreditor Agreement or the
Senior Lender Intercreditor Agreement) shall have received all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;
(d) in the case
of any Person that becomes a Subsidiary Loan Party after the Closing Date, the Collateral Agent shall have received a supplement to each of the Collateral Agreement, the Second Priority Intercreditor Agreement, the Senior Lender Intercreditor
Agreement and the Senior Fixed Collateral Intercreditor Agreement, in the form specified therein, duly executed and delivered on behalf of such Subsidiary Loan Party;
(e) in the case
of any person that becomes a “first tier” Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party after the Closing Date, the Collateral Agent shall have received, as promptly as practicable following a request by the
Collateral Agent, a Foreign Pledge Agreement, duly executed and delivered on behalf of such Foreign Subsidiary and the direct parent company of such Foreign Subsidiary;
(f) after the
Closing Date, (i) all the outstanding Equity Interests of (A) any Person that becomes a Subsidiary Loan Party after the Closing Date and (B) subject to Section 5.10(g), all the Equity Interests that are acquired by a Loan Party after the Closing
Date (including, without limitation, the Equity Interests of any Special Purpose Receivables Subsidiary established after the Closing Date), shall have been pledged pursuant to the Collateral Agreement; provided that in no event
shall more than 65% of the issued and outstanding Equity Interests of any “first tier” Foreign Subsidiary or any “first tier” Qualified CFC Holding Company directly owned by such Loan Party be pledged to secure Obligations, and in no event shall
any of the issued and outstanding Equity Interests of any Foreign Subsidiary that is not a “first tier” Foreign Subsidiary of a Loan Party or any Qualified CFC Holding Company that is not a “first tier” Subsidiary of a Loan Party be pledged to
secure Obligations, and (ii) the Collateral Agent (or its bailee pursuant to the Senior Fixed Collateral Intercreditor Agreement or the Senior Lender Intercreditor Agreement) shall have received all certificates or other instruments (if any)
representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;
(g) except as
otherwise contemplated by any Security Document, all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create
the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed,
registered or recorded or delivered to the Collateral Agent for filing, registration or the recording concurrently with, or promptly following, the execution and delivery of each such Security Document;
(h) within 90
days (or such longer period as the Administrative Agent may determine) after the Closing Date, the Collateral Agent shall have received (i) counterparts of each Mortgage to be entered into with respect to
each Mortgaged Property set forth on Schedule 1.01(c) duly executed and delivered by the record owner of such Mortgaged Property and suitable for recording or filing and (ii) such other documents including, but not limited to,
any consents, agreements and confirmations of third parties, as the Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property;
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(i) within 90
days (or such longer period as the Administrative Agent may determine) after the Closing Date, the Collateral Agent shall have received, except as otherwise set forth in clause (l) below, a policy or policies or marked-up unconditional binder of
title insurance or foreign equivalent thereof, as applicable, paid for by the Borrower, issued by a nationally recognized title insurance company insuring the Lien of each Mortgage to be entered into on or after the Closing Date as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens except as permitted by Section 6.02 and Liens arising by operation of law, together with such customary endorsements (including zoning endorsements where reasonably
appropriate and available), coinsurance and reinsurance as the Collateral Agent may reasonably request, and with respect to any such property located in a state in which a zoning endorsement is not available, a zoning compliance letter from the
applicable municipality in a form reasonably acceptable to the Collateral Agent;
(j) at or prior
to delivery of any Mortgages, evidence of the insurance required by the terms of the Mortgages;
(k) except as
otherwise contemplated by any Security Document, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with (i) the execution and delivery of all Security Documents (or supplements thereto) to
which it is a party and the granting by it of the Liens thereunder and (ii) the performance of its obligations thereunder; and
(l) after the
Closing Date, the Administrative Agent shall have received (i) such other Security Documents as may be required to be delivered pursuant to Section 5.10, and (ii) upon reasonable request by the Administrative Agent, evidence of compliance with
any other requirements of Section 5.10.
“Commitments” shall mean, with respect to any Lender, such Lender’s (A) Term Q Loan Commitment, Term R Loan Commitment, Term S Loan
Commitment, Term T Loan Commitment, Term U Loan Commitment and Term TV Loan Commitment and (B) Incremental Term Loan Commitment.
“Companies Act of 2006” shall mean the Companies Act of 2006 of the United Kingdom (as amended).
“Conduit Lender” shall mean any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any
reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect
to its Conduit Lender; provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Section 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have been entitled
to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Commitment.
“Consolidated Debt” at any date shall mean the sum of (without duplication) all Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed money (other than letters
of credit to the extent undrawn but including all bankers’ acceptances issued under the Revolving Credit Agreement), Disqualified Stock and Indebtedness in respect of the deferred purchase price of property or services of the Borrower and its
Subsidiaries determined on a consolidated basis on such date in accordance with GAAP.
“Consolidated Net Income” shall mean, with respect to any person for any period, the aggregate of the Net Income of such person and its subsidiaries for such period, on a consolidated
basis; provided, however, that, without duplication,
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(i) any net after-tax extraordinary, nonrecurring or unusual gains or losses or income or expense or charge (less all fees and expenses relating thereto) including, without limitation, any severance, relocation or other
restructuring expenses, any expenses relating to any reconstruction, recommissioning or reconfiguration of fixed assets for alternative uses and fees, expenses or charges relating to new product lines, plant shutdown costs, acquisition
integration costs, and fees, expenses or charges related to any offering of Equity Interests of Holdings, any Investment, acquisition or Indebtedness permitted to be incurred hereunder (in each case, whether or not successful), including any such
fees, expenses, charges or change in control payments related to the Transactions (including any transition-related expenses incurred before, on or after the Original Agreement Date), in each case, shall be excluded,
(ii) any net after-tax income or loss from discontinued operations and any net after-tax gain or loss from disposed, abandoned, transferred, closed or
discontinued operations shall be excluded,
(iii) any net after-tax gain or loss (less all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other
than in the ordinary course of business (as determined in good faith by the Board of Directors of the Borrower) shall be excluded,
(iv) any net after-tax income or loss (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of indebtedness shall be
excluded,
(v) (A) the Net Income for such period of any person that is not a subsidiary of such person, or is an Unrestricted Subsidiary, or that is accounted for by the
equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent person or a subsidiary thereof in respect of such
period and (B) the Net Income for such period shall include any ordinary course dividend distribution or other payment in cash received from any person in excess of the amounts included in clause (A),
(vi) Consolidated Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,
(vii) any increase in amortization or depreciation or any one-time non-cash charges resulting from purchase accounting (or similar accounting, in the case of the
Transactions) in connection with the Transactions or any acquisition that is consummated after the Original Agreement Date shall be excluded,
(viii) any non-cash impairment charges or asset write-off resulting from the application of GAAP, and the amortization of intangibles arising pursuant to GAAP,
shall be excluded,
(ix) any non-cash expenses realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, grants of stock appreciation
or similar rights, stock options, restricted stock grants or other rights to officers, directors and employees of such person or any of its subsidiaries shall be excluded,
(x) accruals and reserves that are established within twelve months after the Closing Date and that are so required to be established in accordance with GAAP
shall be excluded,
(xi) non-cash gains, losses, income and expenses resulting from fair value accounting required by Statement of Financial Accounting Standards No. 133 shall be
excluded, and
(xii) non-cash charges for deferred tax asset valuation allowances shall be excluded.
“Consolidated Total Assets” shall mean, as of any date, the total assets of the Borrower and the consolidated Subsidiaries, determined in accordance with GAAP, as set forth on the
consolidated balance sheet of the Borrower as of such date.
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“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of
voting securities, by contract or otherwise, and “Controlling” and “Controlled” shall have meanings correlative thereto.
“Court” shall mean the High Court of Justice of England and Wales.
“Court Meeting” shall mean, if the Acquisition proceeds by way of a Scheme, the meeting(s) of the holders of the Target Shares or any adjournment thereof to be convened by an order of
the Court and, if thought fit, approve the Scheme (with or without amendment), together with any meeting held as a result of an adjournment or reconvention by the Court thereof.
“Court Orders” shall mean, if the Acquisition proceeds by way of a Scheme, the order(s) of
the Court sanctioning the Scheme.
“Credit Suisse” means Credit Suisse AG, Cayman Islands Branch (formerly known as Credit Suisse, Cayman Islands Branch), and its successors.
“Cumulative Credit” shall mean, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
(a) $100.0
million, plus:
(b) the
Cumulative Retained Excess Cash Flow Amount at such time, plus
(c) the aggregate
amount of proceeds received after the Original Agreement Date and prior to such time that would have constituted Net Proceeds pursuant to clause (a) of the definition thereof except for the operation of clause (A), (B) or (C) of the second
proviso thereof (the “Below Threshold Asset Sale Proceeds”), plus
(d) the
cumulative amount of proceeds (including cash and the fair market value of property other than cash) from the sale of Equity Interests of Holdings or any Parent Entity after the Original Agreement Date and on or prior to such time (including upon
exercise of warrants or options) which proceeds have been contributed as common equity to the capital of the Borrower and common Equity Interests of the Borrower issued upon conversion of Indebtedness of the Borrower or any Subsidiary owed to a
person other than the Borrower or a Subsidiary not previously applied for a purpose other than use in the Cumulative Credit, plus
(e) 100% of the
aggregate amount of contributions to the common capital of the Borrower received in cash (and the fair market value of property other than cash) after the Original Agreement Date (subject to the same exclusions as are applicable to clause (d)
above), plus
(f) the principal
amount of any Indebtedness (including the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock) of Borrower or any Subsidiary thereof issued after the Original Agreement Date (other than
Indebtedness issued to a Subsidiary), which has been converted into or exchanged for Equity Interests (other than Disqualified Stock) in Holdings or any Parent Entity, plus
(g) 100% of the
aggregate amount received by Borrower or any Subsidiary in cash (and the fair market value of property other than cash received by Borrower or any Subsidiary) after the Original Agreement Date from:
(A) the sale
(other than to Borrower or any Subsidiary) of the Equity Interests of an Unrestricted Subsidiary, or
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(B) any dividend
or other distribution by an Unrestricted Subsidiary, plus
(h) in the event
any Unrestricted Subsidiary has been redesignated as a Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, Holdings, Borrower or any Subsidiary, the fair market
value of the Investments of Holdings, Borrower or any Subsidiary in such Unrestricted Subsidiary at the time of such Subsidiary Redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), plus
(i) an amount
equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Borrower or any Subsidiary in respect of any Investments made pursuant to
Section 6.04(j) (or the corresponding provision of the senior secured bank credit facility then applicable to such entity) after the Original Agreement Date, minus
(j) any amounts
thereof used to make Investments pursuant to Section 6.04(b)(y) (or the corresponding provision of the senior secured bank credit facility then applicable to such entity) after the Original Agreement Date prior to such time, minus
(k) any amounts
thereof used to make Investments pursuant to Section 6.04(j)(ii) (or the corresponding provision of the senior secured bank credit facility then applicable to such entity) after the Original Agreement Date prior to such time, minus
(l) the
cumulative amount of dividends paid and distributions made pursuant to Section 6.06(e) (or the corresponding provision of the senior secured bank credit facility then applicable to such entity) after the Original Agreement Date prior to such
time, minus
(m) payments or
distributions in respect of Junior Financings pursuant to Section 6.09(b)(i) (or the corresponding provision of the senior secured bank credit facility then applicable to such entity) (other than payments made with proceeds from the issuance of
Equity Interests that were excluded from the calculation of the Cumulative Credit pursuant to clause (d) above) after the Original Agreement Date;
provided, however, for purposes of Section 6.06(e), the calculation of the Cumulative Credit shall not include any Below Threshold Asset Sale Proceeds except to the extent they are used
as contemplated in clauses (j) and (k) above.
“Cumulative Retained Excess Cash Flow Amount” shall mean, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to:
(a) the aggregate
cumulative sum of the Retained Percentage of Excess Cash Flow for all Excess Cash Flow Periods ending after the Original Agreement Date and prior to such date, plus
(b) for each
Excess Cash Flow Interim Period ended prior to such date but as to which the corresponding Excess Cash Flow Period has not ended, an amount equal to the Retained Percentage of Excess Cash Flow for such Excess Cash Flow Interim Period, minus
(c) the
cumulative amount of all Retained Excess Cash Flow Overfundings as of such date.
“Current Assets” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, the sum of (a) all assets (other than cash and
Permitted Investments or other cash equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Subsidiaries as current assets at such date of determination, other than amounts related to
current or deferred Taxes based on income or profits, and (b) in the event that a Permitted Receivables Financing is accounted for off balance sheet, (x) gross accounts receivable comprising part of the Receivables Assets subject to such Permitted
Receivables Financing less (y) collections against the amounts sold pursuant to clause (x).
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“Current Liabilities” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, all liabilities that
would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Subsidiaries as current liabilities at such date of determination, other than (a) the current portion of any Indebtedness, (b) accruals of
Interest Expense (excluding Interest Expense that is due and unpaid), (c) accruals for current or deferred Taxes based on income or profits, (d) accruals, if any, of transaction costs resulting from the Transactions, (e) accruals of any costs or
expenses related to (i) severance or termination of employees prior to the Original Agreement Date or (ii) bonuses, pension and other post-retirement benefit obligations, and (f) accruals for add-backs to EBITDA included in clauses (a)(iv) through
(a)(vi) of the definition of such term.
“Debt Service” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, Cash Interest Expense for such period plus
scheduled principal amortization of Consolidated Debt for such period.
“Declining Lender” shall have the meaning assigned to such term in Section 2.11(d).
“Default” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.
“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or one of its Subsidiaries in connection with an Asset Sale that is so
designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer, setting forth the basis of such valuation, less the amount of cash equivalents received in connection with a subsequent sale of such Designated
Non-Cash Consideration.
“Disqualified Stock” shall mean, with respect to any person, any Equity Interests of such person that, by its terms (or by the terms of any security or other Equity Interests into which
it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or
otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all
other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled
payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in each case, prior to the date that is ninety-one (91) days after the
latest Term Facility Maturity Date; provided, however, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so
redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, however, that if such Equity Interests are issued to any employee or
to any plan for the benefit of employees of the Borrower or the Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Borrower
in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
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“Documentation Agents” shall mean Banc of America, N.A., Citigroup North America, Inc., Goldman Sachs Credit Partners L.P., J.P. Morgan Securities Inc., And Lehman Brothers Inc., as
co-documentation agents.
“Dollars” or “$” shall mean the lawful currency of the United States of America.
“Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, (b) if such amount is expressed in Euros, the
equivalent of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars with Euros last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Thomson Reuters Corp.
(“Reuters”) source on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of dollars with Euros, as provided by
such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by the Administrative Agent in its sole discretion (or if such service ceases to be available or ceases to provide such
rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it deems appropriate in its reasonable discretion), (c) if such amount is expressed in Sterling, the equivalent
of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars with Sterling last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Reuters source on the Business
Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of Dollars with Sterling, as provided by such other publicly available
information service which provides that rate of exchange at such time in place of Reuters chosen by the Administrative Agent in its sole discretion (or if such service ceases to be available or ceases to provide such rate of exchange, the
equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it deems appropriate in its reasonable discretion) and (d) if such amount is denominated in any other currency, the equivalent of such
amount in Dollars as determined by the Administrative Agent using any method of determination it deems appropriate in its reasonable discretion.
“Domestic Subsidiary” shall mean any Subsidiary that is not a Foreign Subsidiary, a Qualified CFC Holding Company or a subsidiary listed on Schedule 1.01(a).
“EBITDA” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of the Borrower and the Subsidiaries for such
period plus (a) the sum of (in each case without duplication and to the extent the respective amounts described in subclauses (i) through (vii) of this clause (a) reduced such Consolidated Net Income (and were not excluded
therefrom) for the respective period for which EBITDA is being determined):
(i) provision for Taxes based on income, profits or capital of the Borrower and the Subsidiaries for such period, including, without limitation, state,
franchise and similar taxes,
(ii) Interest Expense of the Borrower and the Subsidiaries for such period (net of interest income of the Borrower and its Subsidiaries for such period),
(iii) depreciation and amortization expenses of the Borrower and the Subsidiaries for such period,
(iv) business optimization expenses and other restructuring charges (which, for the avoidance of doubt, shall include, without limitation, the effect of
inventory optimization programs, plant closure, retention, severance, systems establishment costs and excess pension charges); provided, that with respect to each business optimization expense or other restructuring charge, the
Borrower shall have delivered to the Administrative Agent an officers’ certificate specifying and quantifying such expense or charge,
(v) any other non-cash charges; provided, that, for purposes of this subclause (v) of this clause (a), any non-cash charges or losses shall be
treated as cash charges or losses in any subsequent period during which cash disbursements attributable thereto are made,
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(vi) [reserved], and
(vii) non-operating expenses;
minus (b) the sum of (without duplication and to the extent the amounts described in this clause (b) increased such Consolidated Net Income for the respective period for which EBITDA is being determined)
non-cash items increasing Consolidated Net Income of the Borrower and the Subsidiaries for such period (but excluding any such items (A) in respect of which cash was received in a prior period or will be received in a future period or (B) which
represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period).
“EEA Financial Institution” shall mean (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” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean 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.
“EMU” shall mean the economic and monetary union as contemplated in the Treaty on European Union.
“environment” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural
resources such as flora and fauna, the workplace or as otherwise defined in any Environmental Law.
“Environmental Laws” shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, decrees or judgments, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to occupational health and
safety matters (to the extent relating to the environment or Hazardous Materials).
“Equity Interests” of any person shall mean any and all shares, interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or
interests in (however designated) equity or ownership of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests
convertible into or exchangeable for any of the foregoing.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated and the rulings issued
thereunder.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with Holdings, the Borrower or a Subsidiary, is treated as a single employer under
Section 414(b) or (c) of the IRS Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the IRS Code, is treated as a single employer under Section 414 of the IRS Code.
“ERISA Event” shall mean (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan; (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the IRS Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the IRS Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section 412(m) of
15
the IRS Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d) the incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any liability under
Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (e) the receipt by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; (g) the receipt by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any
notice, concerning the impending imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the conditions for imposition of
a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; or (i) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBOR Rate” shall mean, with
respect to any Eurocurrency Borrowing for any Interest Period, to the extent denominated in Euros, the EURIBOR Screen Rate, in each case at approximately 11:00 a.m., Brussels time, two Business Days prior to the commencement of such Interest
Period; provided that if the EURIBOR Screen Rate shall not be available at such time for such Interest Period with respect to Euros then the EURIBOR Rate shall be the Interpolated Rate.
“EURIBOR Screen Rate” shall mean the euro interbank offered rate administered by the European
Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters
screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters as of 11:00 a.m. Brussels time two
Business Days prior to the commencement of such Interest Period. If such page or service ceases to be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower
Representative. If the EURIBOR Screen Rate shall be less than zero, the EURIBOR Screen Rate shall be deemed to be zero for purposes of this Agreement.
“Euro” or “€” means the official lawful currency of the participating member states of the EMU.
“Eurocurrency Borrowing” shall mean a Borrowing comprised of
Eurocurrency Loans.
“Eurocurrency Loan” shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in the case of Term Loans denominated in Dollars and EURIBOR Rate in
the case of Term Loans denominated in Euro, in each case, in accordance with the provisions of Article II.
“Event of Default” shall have the meaning assigned to such term in Section 7.01.
“Excess Cash Flow” shall mean, with respect to the Borrower and its Subsidiaries on a consolidated basis for any Applicable Period, EBITDA of the Borrower and its Subsidiaries on a
consolidated basis for such Applicable Period, minus, without duplication,
(a) Debt Service
for such Applicable Period,
(b) the amount
of any voluntary prepayment permitted hereunder (or, if made prior to the Closing Date, permitted under the senior secured bank credit facility then applicable to such entity) of term Indebtedness during such Applicable Period (other than any
voluntary prepayment of the Loans), so long as the amount of such prepayment is not already reflected in Debt Service,
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(c) (i) Capital
Expenditures by the Borrower and the Subsidiaries on a consolidated basis during such Applicable Period that are paid in cash (to the extent permitted under this Agreement) and (ii) the aggregate consideration paid in cash during the Applicable
Period in respect of Permitted Business Acquisitions and other Investments permitted hereunder less any amounts received in respect thereof as a return of capital,
(d) Capital
Expenditures that the Borrower or any Subsidiary shall, during such Applicable Period, become obligated to make but that are not made during such Applicable Period (to the extent permitted under this Agreement or if prior to the Closing Date, the
senior secured bank credit facility then applicable to such entity); provided, that (i) Holdings shall deliver a certificate to the Administrative Agent not later than 90 days after the end of such Applicable Period, signed by a
Responsible Officer of the Borrower and certifying that such Capital Expenditures and the delivery of the related equipment will be made in the following Applicable Period, and (ii) any amount so deducted shall not be deducted again in a
subsequent Applicable Period,
(e) Taxes paid
in cash by Holdings and its Subsidiaries on a consolidated basis during such Applicable Period or that will be paid within six months after the close of such Applicable Period; provided, that with respect to any such amounts to
be paid after the close of such Applicable Period, (i) any amount so deducted shall not be deducted again in a subsequent Applicable Period, and (ii) appropriate reserves shall have been established in accordance with GAAP,
(f) an amount
equal to any increase in Working Capital of the Borrower and its Subsidiaries for such Applicable Period,
(g) cash
expenditures made in respect of Swap Agreements during such Applicable Period, to the extent not reflected in the computation of EBITDA or Interest Expense,
(h) permitted
dividends or distributions or repurchases of its Equity Interests paid in cash by the Borrower during such Applicable Period and permitted dividends paid by any Subsidiary to any person other than Holdings, the Borrower or any of the Subsidiaries
during such Applicable Period, in each case in accordance with Section 6.06 hereof (or the corresponding provision of the senior secured bank credit facility then applicable to such entity) (other than Section 6.06(e) or the corresponding
provision of the senior secured bank credit facility then applicable to such entity),
(i) amounts paid
in cash during such Applicable Period on account of (A) items that were accounted for as noncash reductions of Net Income in determining Consolidated Net Income or as noncash reductions of Consolidated Net Income in determining EBITDA of the
Borrower and its Subsidiaries in a prior Applicable Period and (B) reserves or accruals established in purchase accounting,
(j) to the
extent not deducted in the computation of Net Proceeds in respect of any asset disposition or condemnation giving rise thereto, the amount of any mandatory prepayment of Indebtedness (other than Indebtedness created hereunder or under any other
Loan Document), together with any interest, premium or penalties required to be paid (and actually paid) in connection therewith, and
(k) the
aggregate amount of items that were added to or not deducted from Net Income in calculating Consolidated Net Income or were added to or not deducted from Consolidated Net Income in calculating EBITDA to the extent such items represented a cash
payment (which had not reduced Excess Cash Flow upon the accrual thereof in a prior Applicable Period), or an accrual for a cash payment, by the Borrower and its Subsidiaries or did not represent cash received by the Borrower and its
Subsidiaries, in each case on a consolidated basis during such Applicable Period,
plus, without duplication,
(i) an amount equal to any decrease in Working Capital for such Applicable Period,
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(ii) all amounts referred to in clauses (b), (c), (d) and (h) above to the extent funded with the proceeds of the issuance or the incurrence of Indebtedness (including Capital Lease Obligations and purchase money Indebtedness, but
excluding, solely as relating to Capital Expenditures, proceeds of Revolving Facility Loans (or, if prior to the Closing Date, revolving loans pursuant to the senior secured bank credit facility then applicable to such entity)), the sale or
issuance of any Equity Interests (including any capital contributions) and any loss, damage, destruction or condemnation of, or any sale, transfer or other disposition (including any sale and leaseback of assets and any mortgage or lease of Real
Property) to any person of any asset or assets, in each case to the extent there is a corresponding deduction from Excess Cash Flow above,
(iii) to the extent any permitted Capital Expenditures referred to in clause (d) above and the delivery of the related equipment do not occur in the following Applicable Period
of the Borrower specified in the certificate of the Borrower provided pursuant to clause (d) above, the amount of such Capital Expenditures that were not so made in such following Applicable Period,
(iv) cash payments received in respect of Swap Agreements during such Applicable Period to the extent (i) not included in the computation of EBITDA or (ii) such payments do not
reduce Cash Interest Expense,
(v) any extraordinary or nonrecurring gain realized in cash during such Applicable Period (except to the extent such gain consists of Net Proceeds subject to Section 2.11(b)),
(vi) to the extent deducted in the computation of EBITDA, cash interest income, and
(vii) the aggregate amount of items that were deducted from or not added to Net Income in connection with calculating Consolidated Net Income or were deducted from or not added
to Consolidated Net Income in calculating EBITDA to the extent either (i) such items represented cash received by the Borrower or any Subsidiary or (ii) such items do not represent cash paid by the Borrower or any Subsidiary, in each case on a
consolidated basis during such Applicable Period.
“Excess Cash Flow Interim Period” shall mean, (x) during any Excess Cash Flow Period, any one-, two-, or three-quarter period (a) commencing on the later of (i) the end of the
immediately preceding Excess Cash Flow Period and (ii) if applicable, the end of any prior Excess Cash Flow Interim Period occurring during the same Excess Cash Flow Period and (b) ending on the last day of the most recently ended fiscal quarter
(other than the last day of the Fiscal Year) during such Excess Cash Flow Period for which financial statements are available and (y) during the period from the Original Agreement Date until the beginning of the first Excess Cash Flow Period, any
period commencing on the Original Agreement Date and ending on the last day of the most recently ended fiscal quarter for which financial statements are available.
“Excess Cash Flow Period” shall mean (i) each fiscal year of the Borrower, commencing with the first full fiscal year of the Borrower following the Closing Date, and (ii) the period
from January 1, 2007 through the day prior to the initial fiscal year referred to in clause (i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Indebtedness” shall mean all Indebtedness permitted to be incurred under Section 6.01 (other than Section 6.01(v)).
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) any income taxes imposed on (or measured by) its net income (or franchise taxes imposed in lieu of net income taxes) by the United States of America (or any state or locality thereof) or the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located or any other jurisdiction as a result of such recipient engaging in a trade or business in such
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jurisdiction for tax purposes, (b) any branch profits tax or any similar tax that is imposed by any jurisdiction described in clause (a) above, (c) in the case of a Lender making a Loan to the Borrower, any tax
(including any backup withholding tax) imposed by the United States (or the jurisdiction under the laws of which such Lender is organized or in which its principal office is located or in which its applicable Lending Office is located or any other
jurisdiction as a result of such Lender engaging in a trade or business or having a taxable presence in such jurisdiction for tax purposes) that (x) is in effect and would apply to amounts payable hereunder to such Lender at the time such Lender
becomes a party to such Loan to the Borrower (or designates a new Lending Office) except to the extent that the assignor to such Lender in the case of an assignment or the Lender in the case of a designation of a new Lending Office
(for the absence of doubt, other than the Lending Office at the time such Lender becomes a party to such Loan) was entitled, at the time of such assignment or designation of a new Lending Office, respectively, to receive additional amounts from a
Loan Party with respect to any withholding tax pursuant to Section 2.17(a) or Section 2.17(c) or (y) is attributable to such Lender’s failure to comply with Section 2.17(e) or (f) with respect to such Loan and (d) any taxes that are imposed as a
result of any event occurring after the Lender becomes a Lender (other than a Change in Law) in the case of clause (a), (b), (c) and (d), together with any and all interest and penalties related thereto.
“Existing Second Lien 5.50% 2022 Notes” shall mean the 5.50% Second Priority Senior Secured Notes due 2022, issued by the Borrower pursuant to the Existing Second Lien 5.50% 2022 Notes
Indenture and any notes in exchange for, and as contemplated by, the Existing Second Lien 5.50% 2022 Notes.
“Existing Second Lien 6.00% 2022 Notes” shall mean the 6.00% Second Priority Senior Secured Notes due 2022, issued by the Borrower pursuant to the Existing Second Lien 6.00% 2022 Notes
Indenture and any notes in exchange for, and as contemplated by, the Existing Second Lien 6.00% 2022 Notes.
“Existing Second Lien 2023 Notes” shall mean the 5.125% Second Priority Senior Secured Notes due 2023, issued by the Borrower pursuant to the Existing Second Lien 2023 Notes Indenture
and any notes in exchange for, and as contemplated by, the Existing Second Lien 2023 Notes.
“Existing Second Lien 2026 Notes” shall mean the 4.50% Second Priority Senior Secured Notes due 2026, issued by the Borrower pursuant to the Existing Second Lien 2026 Notes Indenture
and any notes in exchange for, and as contemplated by, the Existing Second Lien 2026 Notes.
“Existing Second Lien Note Documents” shall mean the Existing Second Lien Notes, the Existing Second Lien Notes Indentures and the Existing Second Lien Security Documents.
“Existing Second Lien Notes” shall mean the Existing Second Lien 5.50% 2022 Notes, the Existing Second Lien 6.00% 2022 Notes, the Existing Second Lien 2023 Notes and the Existing Second
Lien 2026 Notes.
“Existing Second Lien 5.50% 2022 Notes Indenture” shall mean the Indenture dated as of May 22, 2014 among Berry and certain of its subsidiaries party thereto and the trustee named
therein from time to time, as in effect on the Effective Date and as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement.
“Existing Second Lien 6.00% 2022 Notes Indenture” shall mean the Indenture dated as of October 1, 2015 among Berry and certain of its subsidiaries party thereto and the trustee named
therein from time to time, as in effect on the Effective Date and as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement.
“Existing Second Lien 2023 Notes Indenture” shall mean the Indenture dated as of June 5, 2015 among Berry and certain of its subsidiaries party thereto and the trustee named therein
from time to time, as in effect on the Effective Date and as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement.
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“Existing Second Lien 2026 Notes Indenture” shall mean the Indenture dated as of January 26, 2018 among Berry and certain of its subsidiaries party thereto and the trustee named therein
from time to time, as in effect on the Effective Date and as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement.
“Existing Second Lien Notes Indentures” shall mean the Existing Second Lien 5.50% 2022 Notes Indenture, the Existing Second Lien 6.00% 2022 Notes Indenture, the Existing Second Lien
2023 Notes Indenture and the Existing Second Lien 2026 Notes Indenture.
“Existing Second Lien Security Documents” shall mean the “Security Documents” as defined in each of the Existing Second Lien Notes Indentures.
“Existing Term Loans” shall mean the Term Q Loans, the Term R Loans, the Term S Loans and the Term T Loans.
“Existing Term Loan Commitments” shall mean the Term Q Loan Commitments, the Term R Loan Commitments, the Term S Loan Commitments and the Term T Loan Commitments.
“Facility” shall mean the respective facility and commitments utilized in making
Loans and credit extensions hereunder, it being understood that as of the date of this Agreement there shall be foursix Facilities, i.e. Term Q Facility, the Term R Facility, the Term S Facility, the Term T Facility, Term U Facility, Term V Facility and after the date hereof may include the Incremental Term Facility.
“FATCA” shall mean Sections 1471 through 1474 of the IRS Code as of the Effective Date (or any amended or successor provisions that are substantively similar) and any current or future
regulations thereunder or official interpretation thereof.
“Federal Funds Effective Rate” shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Credit Suisse on such day on such transactions as determined by the Administrative Agent.
“Fee Letter” shall mean that certain Fee Letter dated March 2, 2007 by and among the Borrower, Bank of America, N.A., Banc of America Securities LLC, Citigroup Global Markets Inc.,
Credit Suisse, Credit Suisse Securities (USA) LLC, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., JPMorgan Chase Bank, N.A., J.P. Morgan Securities Inc. and Lehman Brothers Inc.
“Fees” shall mean the Administrative Agent Fees.
“Financial Officer” of any person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer or Controller of such person.
“First Lien Debt” at any date shall mean (i) the aggregate principal amount of Consolidated Debt of the Borrower and its Subsidiaries outstanding at such date that consists of, without
duplication, Indebtedness that in each case is then secured by first priority Liens on property or assets of the Borrower and its Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of
the Indebtedness secured thereby), less (ii) without duplication, the Unrestricted Cash and Permitted Investments of the Borrower and its Subsidiaries on such date.
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“Foreign Pledge Agreement” shall mean a pledge agreement with respect to the Pledged Collateral that constitutes Equity Interests of a “first tier” Foreign Subsidiary, in form and
substance reasonably satisfactory to the Collateral Agent; provided, that in no event shall more than 65% of the issued and outstanding Equity Interests of such Foreign Subsidiary be pledged to secure Obligations of the Borrower.
If the “first tier” Foreign Subsidiary is classified as a flow-through entity for U.S. federal income tax purposes, then the preceding sentence shall further be construed as providing that no more than 65% of any asset of the “first tier” Foreign
Subsidiary shall be considered to have been pledged to secure Obligations of the Borrower.
“Foreign Subsidiary” shall mean (a) any Subsidiary that is incorporated or organized under the laws of any jurisdiction other than the United States of America, any State thereof or the
District of Columbia, and (b) any Subsidiary of any Subsidiary described in the foregoing clause (a).
“Fund Affiliates” shall mean (i) each Affiliate of any Funds, (ii) any individual who is a partner or employee of Apollo Management, L.P., Apollo Management IV, L.P. or Apollo
Management V, L.P., Apollo Management VI, L.P., and (iii) Graham BPC Investment Holdings, LP.
“Fund I” shall mean Apollo Management V, L.P. and other affiliated co-investment partnerships.
“Fund II” shall mean Apollo Management VI, L.P. and other affiliated co-investment partnerships and Graham Partners Inc.
“Fund Termination Fee” shall have the meaning specified in Section 6.07(b)(xiv).
“Funds” shall mean Fund I and Fund II, collectively.
“GAAP” shall mean generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section 1.02; provided that any reference to the application of GAAP in Sections 3.13(b), 3.20, 5.03, 5.07 and 6.02(e) to a Foreign Subsidiary (and not as a consolidated Subsidiary of the Borrower) shall mean generally accepted accounting
principles in effect from time to time in the jurisdiction of organization of such Foreign Subsidiary.
“General Meeting” shall mean the extraordinary general meeting of the Target shareholders (and any adjournment thereof) to be convened in connection with the Scheme.
“Governmental Authority” shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body.
“Guarantee” of or by any person (the “guarantor”) shall mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay
or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, (iv) entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect
thereof (in whole or in part) or (v) as an account party in respect of any letter of credit, bank guarantee, bankers’ acceptance or other letter of guaranty issued to support such Indebtedness or other obligation, or (b) any Lien on any assets of
the guarantor securing any Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the
guarantor; provided, however, the term “Guarantee” shall not include endorsements of instruments for deposit or
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collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted by this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.
“guarantor” shall have the meaning assigned to such term in the definition of the term “Guarantee.”
“Hazardous Materials” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including, without limitation, explosive or radioactive
substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature subject to regulation or which can give rise to liability under any Environmental Law.
“Hedging Obligations” means, with respect to any person, the obligations of such person under (i) currency exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements, and (ii) other agreements or arrangements designed to protect such person against fluctuations in currency exchange, interest rates or
commodity prices.
“Holdings” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
“Immaterial Subsidiary” shall mean any Subsidiary that, as of the last day of the fiscal quarter of the Borrower most recently ended, (a) did not have assets with a value in excess of
5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date and (b) when taken together with all other Immaterial Subsidiaries as of
such date, did not have assets with a value in excess of 10.0% of the Consolidated Total Assets or revenues representing in excess of 10.0% of total revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date. Each
Immaterial Subsidiary as of the Closing Date shall be set forth in Schedule 1.01(d).
“Increased Amount Date” shall have the meaning assigned to such term in Section 2.21(a).
“Incremental Amount” shall mean, at any time, the greater of (a) the excess, if any of (i) $600 million over (ii) the aggregate amount of all Incremental Term Loan Commitments
established prior to such time pursuant to Section 2.21 and (b) the aggregate principal amount such that the Total Net First Lien Leverage Ratio shall not exceed 4:00 to 1.00.
“Incremental Assumption Agreement” shall mean an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the
Administrative Agent and one or more Incremental Term Lenders.
“Incremental Term Borrowing” shall mean a Borrowing comprised of Incremental Term Loans.
“Incremental Term Facility” shall mean the Incremental Term Loan Commitments and the Incremental Term Loans made hereunder.
“Incremental Term Facility Maturity Date” shall mean, with respect to any series or tranche of Incremental Term Loans established pursuant to an Incremental Assumption Agreement, the
maturity date for as set forth in such Incremental Assumption Agreement.
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
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“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to Section 2.21, to make Incremental Term Loans to the Borrower.
“Incremental Term Loan Installment Date” shall have, with respect to any series or tranche of Incremental Term Loans established pursuant to an Incremental Assumption Agreement, the
meaning assigned to such term in Section 2.10(a)(ii).
“Incremental Term Loans” shall mean Loans made by one or more Lenders to the
Borrower pursuant to Section 2.01(c). Incremental Term Loans may be made in the form of additional Term Q Loans, Term R Loans, Term S Loans, Term T Loans, Term U Loans, Term V Loans, or, to the extent permitted by Section 2.21 and provided for in the relevant Incremental Assumption Agreement, Other Term Loans.
“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person, (d) all obligations of such person issued or assumed as the
deferred purchase price of property or services, to the extent that the same would be required to be shown as a long term liability on a balance sheet prepared in accordance with GAAP, (e) all Capital Lease Obligations of such person, (f) all net
payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being determined, in respect of outstanding Swap Agreements, (g) the principal component of all obligations, contingent or
otherwise, of such person as an account party in respect of letters of credit, (h) the principal component of all obligations of such person in respect of bankers’ acceptances, (i) all Guarantees by such person of Indebtedness described in clauses
(a) to (h) above) and (j) the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such
Disqualified Stock); provided, that Indebtedness shall not include (A) trade payables, accrued expenses and intercompany liabilities arising in the ordinary course of business, (B) prepaid or deferred revenue arising in the
ordinary course of business, (C) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase prices of an asset to satisfy unperformed obligations of the seller of such asset or (D) earn-out
obligations until such obligations become a liability on the balance sheet of such person in accordance with GAAP. The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner, other
than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof. To the extent not otherwise included, Indebtedness shall include the amount of any Receivables Net
Investment.
“Indemnified Taxes” shall mean all Taxes other than Excluded Taxes.
“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).
“Ineligible Institution” shall mean the persons identified in writing to the Administrative Agent by the Borrower on the Closing Date, and as may be identified in writing to the
Administrative Agent by the Borrower from time to time thereafter with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), by delivery of a notice thereof to the Administrative Agent setting forth such person or
persons (or the person or persons previously identified to the Administrative Agent that are to be no longer considered “Ineligible Institutions”).
“Information” shall have the meaning assigned to such term in Section 3.14(a).
“Information Memorandum” shall mean the Confidential Information Memorandum dated March 13, 2007, as modified or supplemented prior to the Closing Date.
“Intellectual Property Rights” shall have the meaning assigned to such term in Section 3.23.
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“Interest Election Request” shall mean a request by the Borrower to convert or continue a Term Borrowing in accordance with Section 2.07.
“Interest Expense” shall mean, with respect to any person for any period, the sum of (a) gross interest expense of such person for such period on a consolidated basis, including (i) the
amortization of debt discounts, (ii) the amortization of all fees (including fees with respect to Swap Agreements) payable in connection with the incurrence of Indebtedness to the extent included in interest expense, (iii) the
portion of any payments or accruals with respect to Capital Lease Obligations allocable to interest expense, and (iv) net payments and receipts (if any) pursuant to interest rate Hedging Obligations, (b) capitalized interest of such person, and (c)
commissions, discounts, yield and other fees and charges incurred in connection with any Permitted Receivables Financing which are payable to any person other than the Borrower or a Subsidiary Loan Party. For purposes of the foregoing, gross
interest expense shall be determined after giving effect to any net payments made or received and costs incurred by the Borrower and the Subsidiaries with respect to Swap Agreements.
“Interest Payment Date” shall mean, (a) with respect to any Eurocurrency Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the
case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing and, in
addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type, and (b) with respect to any ABR Loan, the last Business Day of each calendar quarter.
“Interest Period” shall mean, as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2,2 (only with respect to Loans denominated in Dollars), 3 or 6 months thereafter (or 12 months, if at the time of the relevant Borrowing, all Lenders agree
to make interest periods of such length available), as the Borrower may elect, or the date any Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09, 2.10 or
2.11; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.
“Interpolated Rate” shall mean, (i) in relation to the Eurocurrency Loan for any Loan in Dollars, the rate which results from interpolating on a linear basis between: (a) the ICE Benchmark Administration’s Interest Settlement Rates for deposits in Dollars, for the longest period
(for which that rate is available) which is less than the Interest Period and (b) the ICE Benchmark Administration’s Interest Settlement Rates for deposits in Dollars, for the shortest period (for which that rate is available) which exceeds the
Interest Period, each as of approximately 11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period and (ii) in relation to the Eurocurrency Loan for any Loan in Euros, the rate which results from interpolating on a linear basis between: (a) the EURIBOR Screen Rate for the longest period (for which the EURIBOR Screen Rate is
available for Euros) which is less than the Interest Period; and (b) the EURIBOR Screen Rate for the shortest period (for which the EURIBOR Screen Rate is available for Euros) which exceeds the Interest Period, in each case, as of approximately
11:00 a.m. Brussels time, two Business Days prior to the commencement of such Interest Period.
“Investment” shall have the meaning assigned to such term in Section 6.04.
“IRS Code” shall mean the Internal Revenue Code of 1986, as amended from time to time and the regulations promulgated and rulings issued thereunder.
“Joint Lead Arrangers” shall mean Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., in their capacities as joint lead arrangers.
“Junior Financing” shall have the meaning assigned to such term in Section 6.09(b).
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“Lender” shall mean each financial institution listed on Schedule 2.01, as well as any person that becomes a
“Lender” hereunder pursuant to Section 9.04.
“Lender Default” shall mean (i) the refusal (which has not been retracted) of a Lender to make available its portion of any Borrowing, or (ii) a Lender having notified the Borrower
and/or the Administrative Agent that it does not intend to comply with its obligations under Section 2.06 or (iii) a Lender has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.
“Lending Office” shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Loans.
“Letter of Credit” shall mean any letter of credit issued pursuant to the Revolving Credit Agreement.
“LIBO Rate” shall mean, (a) with respect to any Eurocurrency Borrowing for any Interest Period denominated in Dollars, the greater of (x) 0.00% per annum and (y) the rate per annum equal to the ICE Benchmark Administration (“ICE LIBOR”), as published by Bloomberg (or other commercially available source providing quotations of ICE LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided, that if such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the Interpolated Rate.; provided, that if such rate is not available
at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the Interpolated Rate.
“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar encumbrance in or on such asset and (b)
the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset, provided, that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.
“Limited Condition Acquisition” shall mean any acquisition, including by way of merger, amalgamation or consolidation, by one or more of the Borrower or its Restricted Subsidiaries of
any assets, business or Person permitted by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party acquisition financing and which is designated as a Limited Condition Acquisition by the Borrower
in writing to the Administrative Agent and Lenders.
“Loan Documents” shall mean this Agreement, the Security Documents, the Second Priority Intercreditor Agreement, the Senior Lender Intercreditor Agreement, the Senior Fixed Collateral
Intercreditor Agreement, and any Note issued under Section 2.09(e), and solely for the purposes of Article IV and Section 7.01 hereof, the Fee Letter.
“Loan Parties” shall mean Holdings, the Borrower and the Subsidiary Loan Parties.
“Loans” shall mean the Term Q Loans, the Term R Loans, the Term S
Loans, the Term T Loans, the Term U Loans, the Term V Loans and the Incremental Term Loans (in each case, if any).
“Local Time” shall mean, with respect to Dollar denominated Loans, New York City time, and, with respect to Euro denominated Loans, Brussels time.
“Longstop Date” shall mean October 29, 2019.
“Management Group” means the group consisting of the directors, executive officers and other management personnel of the Borrower, Holdings and their Subsidiaries, as the case may be,
on the Closing Date together with (a) any new directors whose election by such boards of directors or whose nomination for election by the shareholders of the Borrower or Holdings, as the case may be, was approved by a vote of a majority of the
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directors of the Borrower or Holdings, as the case may be, then still in office who were either directors on the Closing Date or whose election or nomination was previously so approved and (b) executive officers and
other management personnel of the Borrower or Holdings and their Subsidiaries, as the case may be, hired at a time when the directors on the Closing Date together with the directors so approved constituted a majority of the directors of the
Borrower or Holdings, as the case may be.
“Margin Stock” shall have the meaning assigned to such term in Regulation U.
“Material Adverse Effect” shall mean a material adverse effect on the business, property, operations or condition of the Borrower and its Subsidiaries, taken as a whole, or the validity
or enforceability of any of the material Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder.
“Material Indebtedness” shall mean Indebtedness (other than Loans) of any one or more of the Borrower or any Subsidiary in an aggregate principal amount exceeding $35 million.
“Material Subsidiary” shall mean any Subsidiary other than an Immaterial Subsidiary.
“Maximum Rate” shall have the meaning assigned to such term in Section 9.09.
“Minimum Acceptance Condition” shall mean, with respect to an Offer, the condition set forth
in the Offer Documents with respect to the number of acceptances to an Offer which must be secured to declare such Offer unconditional as to acceptances which shall be equal to or more than 75% of the Target shares carrying voting rights.
“Moody’s” shall mean Moody’s Investors Service, Inc.
“Mortgaged Properties” shall mean the Real Properties owned in fee by the Loan Parties that are set forth on Schedule 1.01(c) and each additional Real Property
encumbered by a Mortgage pursuant to Section 5.10.
“Mortgages” shall mean the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents delivered with respect to
Mortgaged Properties, each in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, as amended, supplemented or otherwise modified from time to time.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower, Holdings or any Subsidiary or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of IRS Code Section 414) is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make
contributions.
“Net Income” shall mean, with respect to any person, the net income (loss) of such person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends.
“Net Proceeds” shall mean:
(a) 100% of the
cash proceeds actually received by the Borrower or any Subsidiary Loan Party (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or
otherwise and including casualty insurance settlements and condemnation awards, but only as and when received) from any Asset Sale (other than those pursuant to Section 6.05(a), (b), (c), (d) (except as contemplated by Section 6.03(b)(y)), (e),
(f), (h), (i) or (j) or (p)), net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required
debt payments and required payments of other obligations relating to the applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan
Documents or the Revolving Loan Documents) on such asset, other customary expenses and
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brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) Taxes paid or payable as a result thereof, and (iii) the amount of any reasonable reserve established in accordance with GAAP
against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any of the Subsidiaries including, without
limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Asset Sale occurring on the date of such reduction); provided, that, if no Event of Default exists and the Borrower shall deliver a
certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds, to acquire, maintain, develop, construct,
improve, upgrade or repair assets useful in the business of the Borrower and the Subsidiaries or to make investments in Permitted Business Acquisitions, in each case within 15 months of such receipt, such portion of such proceeds shall not
constitute Net Proceeds except to the extent not, within 15 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such 15-month period but within
such 15-month period are contractually committed to be used, then, upon the termination of such contract, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso); provided, further, that (A) no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such proceeds shall exceed $5.0 million, (B) no proceeds shall
constitute Net Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $10.0 million, (C) at any time during the 15-month period contemplated by the immediately preceding proviso above, if, on a
Pro Forma Basis after giving effect to the Asset Sale and the application of the proceeds thereof, the Total Net First Lien Leverage Ratio is less than or equal to 4.00 to 1.00, none of such proceeds shall constitute Net Proceeds, and (D) proceeds
from the sale or other disposition of any ABL Assets (including any indirect sale or other disposition occurring by reason of the indirect sale or other disposition of the person that holds such ABL Assets) shall not constitute Net Proceeds to the
extent that the Revolving Credit Agreement requires that such proceeds be applied in payment of any obligations thereunder, and
(b) 100% of the
cash proceeds from the incurrence, issuance or sale by the Borrower or any Subsidiary Loan Party of any Indebtedness (other than Excluded Indebtedness), net of all taxes and fees (including investment banking fees), commissions, costs and other
expenses, in each case incurred in connection with such issuance or sale.
For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the Borrower or any Affiliate of the Borrower shall be disregarded, except for
financial advisory fees customary in type and amount paid to Affiliates of the Funds and otherwise not prohibited from being paid hereunder.
“New York Courts” shall have the meaning assigned to such term in Section 9.15.
“Non-Consenting Lender” shall have the meaning assigned to such term in Section 2.19(c).
“Note” shall have the meaning assigned to such term in Section 2.09(e).
“Obligations” shall mean all amounts owing to the Administrative Agent or any Lender pursuant to the terms of this Agreement or any other Loan Documentthe “Term Obligations” as defined in the Collateral Agreement.
“Offer” means a takeover offer (as defined in Chapter 3 of Part 28 of the Companies Act of 2006) to be made by or on behalf of Holdings in accordance with the Offer Documents to acquire
the entire issued and to be issued share capital of the Target and, where the context admits, any subsequent revision, variation, extension or renewal of such offer.
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“Offer Closing Certificate” means in respect of an Offer, a certificate from the Borrower
confirming that:
(a) the Minimum Acceptance
Condition has been satisfied; and
(b) all other conditions (except
for any condition relating to the payment of the consideration in respect of the Acquisition) of the Offer have been satisfied or waived (and, to the extent waived, confirming that any such waiver does not, or will not upon becoming effective,
constitute a Certain Funds Default).
“Offer Documents” means the Rule 2.7 Announcement, the Offering Circular and any other documents to be sent by the Acquisition SPV to the Target’s shareholders, and otherwise made
available to such persons and in the manner required by Rule 24.1 of the Takeover Code, in connection with the Offer.
“Offer Effective Date” means, if the Acquisition proceeds by way of an Offer, the date on which the Offer is
declared unconditional in all respects by Acquisition SPV.
“Offering Circular” means, if the Acquisition proceeds by way of an Offer, any public offer document issued or to be issued by Acquisition SPV to the Target’s shareholders in
connection with an Offer setting out the terms of the Offer (including any amendments, revisions or extensions thereof).
“Original Agreement Date” shall mean February 16, 2006 in respect of the subsidiaries of Covalence Materials Holding Corp. prior to the Closing Date, shall mean September 20, 2006 in
respect of subsidiaries of Berry Holdings prior to the Closing Date, and shall mean the Closing Date in respect of subsidiaries of Holdings that were not subsidiaries of Covalence Materials Holding Corp. or Berry Holdings prior to the Closing Date.
“Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other excise, transfer, sales, property, intangible, mortgage recording, or similar taxes,
charges or levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents, and any and all interest and penalties related thereto (but not Excluded Taxes).
“Other Term Loans” shall have the meaning assigned to such term in Section 2.21.
“Overdraft Line” shall have the meaning assigned to such term in Section 6.01(w).
“Parent Entity” means any direct or indirect parent of Holdings.
“Participant” shall have the meaning assigned to such term in Section 9.04(c).
“PATRIOT Act” shall have the meaning assigned to such term in Section 9.19.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Perfection Certificate” shall mean the Perfection Certificate with respect to Borrower and the other Loan Parties in a form reasonably satisfactory to the Administrative Agent.
“Permitted Business Acquisition” shall mean any acquisition of all or substantially all the assets of, or all the Equity Interests (other than directors’ qualifying shares) in, or
merger or consolidation with, a person or division or line of business of a person (or any subsequent investment made in a person, division or line of business previously acquired in a Permitted Business Acquisition), if immediately after giving
effect thereto: (i) no Event of Default shall have occurred and be continuing or would result therefrom (or, in connection with a Limited Condition Acquisition, no Specified Event of Default shall have occurred and be continuing or would result
therefrom); (ii) all transactions related thereto shall be consummated in accordance with applicable laws;
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(iii) with respect to any such acquisition or investment with a fair market value in excess of $20.0 million, the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to such acquisition or
investment and any related transactions; (iv) any acquired or newly formed Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by Section 6.01; (v) to the extent required by Section 5.10, any person acquired in
such acquisition, if acquired by the Borrower or a Domestic Subsidiary, shall be merged into the Borrower or a Subsidiary Loan Party or become upon consummation of such acquisition a Subsidiary Loan Party, and (vi) the aggregate amount of such
acquisitions and investments in assets that are not owned by the Borrower or Subsidiary Loan Parties or in Equity Interests in persons that are not Subsidiary Loan Parties or persons that do not become Subsidiary Loan Parties upon consummation of
such acquisition (within the time periods provided in Section 5.10) shall not exceed the greater (x) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition or investment for which
financial statements have been delivered pursuant to Section 5.04 and (y) $150 million.
“Permitted Investments” shall mean:
(a) direct
obligations of the United States of America or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America or any member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;
(b) time deposit
accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company that is organized under the laws of the United States of America, any state thereof or any
foreign country recognized by the United States of America having capital, surplus and undivided profits in excess of $250 million and whose long-term debt, or whose parent holding company’s long-term debt, is rated A (or such similar equivalent
rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));
(c) repurchase
obligations with a term of not more than 180 days for underlying securities of the types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;
(d) commercial
paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of the Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by
the United States of America with a rating at the time as of which any investment therein is made of P-1 (or higher) according to Moody’s, or A-1 (or higher) according to S&P;
(e) securities
with maturities of two years or less from the date of acquisition issued or fully guaranteed by any State, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least
A by S&P or A by Moody’s;
(f) shares of
mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (a) through (e) above;
(g) money market
funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000.0 million;
(h) time deposit
accounts, certificates of deposit and money market deposits in an aggregate face amount not in excess of 0.5% of the total assets of the Borrower and the Subsidiaries, on a consolidated basis, as of the end of the Borrower’s most recently
completed fiscal year; and
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(i) instruments
equivalent to those referred to in clauses (a) through (h) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction.
“Permitted Liens” shall have the meaning assigned to such term in Section 6.02.
“Permitted Receivables Documents” shall mean all documents and agreements evidencing, relating to or otherwise governing a Permitted Receivables Financing.
“Permitted Receivables Financing” shall mean one or more transactions pursuant to which (i) Receivables Assets or interests therein are sold to or financed by one or more Special
Purpose Receivables Subsidiaries, and (ii) such Special Purpose Receivables Subsidiaries finance their acquisition of such Receivables Assets or interests therein, or the financing thereof, by selling or borrowing against Receivables Assets; provided that (A) recourse to the Borrower or any Subsidiary (other than the Special Purpose Receivables Subsidiaries) in connection with such transactions shall be limited to the extent customary for similar transactions in the
applicable jurisdictions (including, to the extent applicable, in a manner consistent with the delivery of a “true sale”/”absolute transfer” opinion with respect to any transfer by the Borrower or any Subsidiary (other than a Special Purpose
Receivables Subsidiary), and (B) the aggregate Receivables Net Investment since the Closing Date shall not exceed $100 million at any time.
“Permitted Refinancing Indebtedness” shall mean any Indebtedness issued in exchange
for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being
Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided, that (a) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus
unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses), (b) except with respect to Section 6.01(i), the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than
or equal to the earlier of the weighted average life to maturity of the Indebtedness being Refinanced and (ii) the final maturity date of such Permitted Refinancing Indebtedness is no earlier than the final maturity date of the Indebtedness being
Refinanced and no earlier than the final maturity date on the Term Q Facility Maturity Date, the Term R Facility Maturity Date, the Term S Facility Maturity Date, the Term T Facility Maturity Date, the Term U Facility Maturity Date and the Term TV Facility Maturity Date, (c) if the Indebtedness being Refinanced is subordinated in right of payment to the
Obligations under this Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the
Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall have different obligors, or greater guarantees or security, than the Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced is secured by any
collateral (whether equally and ratably with, or junior to, the Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be secured by such collateral (including in respect of working capital facilities of Foreign Subsidiaries
otherwise permitted under this Agreement only, any collateral pursuant to after-acquired property clauses to the extent any such collateral secured the Indebtedness being Refinanced) on terms no less favorable to the Secured Parties than those
contained in the documentation governing the Indebtedness being Refinanced; provided, further,
that with respect to a refinancing of (x) subordinated Indebtedness permitted to be incurred herein, such Permitted Refinancing Indebtedness shall (i) be subordinated to the guarantee by Holdings and the Subsidiary Loan Parties of the Facilities,
and be otherwise on terms not materially less favorable to the Lenders than those contained in the documentation governing the Indebtedness being refinanced and (y) the Existing Second Lien Notes, (i) the Liens, if any, securing such Permitted
Refinancing Indebtedness shall be subject to an intercreditor agreement that is substantially consistent with and no less favorable to the Lenders in all material respects than the Second Priority Intercreditor Agreement and (ii) such Permitted
Refinancing Indebtedness shall be otherwise on terms not materially less favorable to the Lenders than those contained in the documentation governing the Indebtedness being Refinanced.
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“Permitted Supplier Finance Facility” shall mean an arrangement entered into with one or more third-party financial institutions for the purpose of facilitating the processing of
receivables such that receivables are purchased directly by such third-party financial institutions from the Borrower or one of its Subsidiaries at such discounted rates as may be agreed; provided that (i) no third-party financial
institution shall have any recourse to the Borrower, its Material Subsidiaries or any other Loan Party in connection with such arrangement and (ii) none of the Borrower, any of its Material Subsidiaries or any other Loan Party shall Guarantee any
liabilities or obligations with respect to such arrangement (including, without limitation, none of the Borrower, any of its Material Subsidiaries or any other Loan Party shall provide any guarantee, surety or other credit support for any of the
obligations owed by any customer to such third party financial institution under any such financing arrangement).
“Person” or “person” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or
government, individual or family trusts, or any agency or political subdivision thereof.
“Plan” shall mean any employee pension benefit plan, as such term is defined in Section 3(2) of ERISA, (other than a Multiemployer Plan), (i) subject to the provisions of Title IV of
ERISA, (ii) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by Holdings, the Borrower or any ERISA Affiliate, or (iii) in respect of which Holdings, the Borrower, any Subsidiary or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” shall have the meaning assigned to such term in Section 9.17.
“Pledged Collateral” shall have the meaning assigned to such term in the Collateral Agreement.
“primary obligor” shall have the meaning given such term in the definition of the term “Guarantee.”
“Pro Forma Basis” shall mean, as to any person, for any events as described below that occur subsequent to the commencement of a period for which the financial effect of such events is
being calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the “Reference Period”): (i) in making any determination of EBITDA, effect shall be given to any Asset Sale, any acquisition (or any similar transaction or transactions not otherwise
permitted under Section 6.04 or 6.05 that require a waiver or consent of the Required Lenders and such waiver or consent has been obtained), any dividend, distribution or other similar payment, any designation of any Subsidiary as an Unrestricted
Subsidiary and any Subsidiary Redesignation, and any restructurings of the business of the Borrower or any of its Subsidiaries that are expected to have a continuing impact and are factually supportable, which would include cost savings resulting
from head count reduction, closure of facilities and similar operational and other cost savings, which adjustments the Borrower determines are reasonable as set forth in a certificate of a Financial Officer of the Borrower (the foregoing, together
with any transactions related thereto or in connection therewith, the “relevant transactions”), in each case that occurred during the Reference Period (or, in the case of determinations made pursuant to the definition of the term
“Permitted Business Acquisition” or pursuant to Sections 2.11(b), 2.21, 6.01(r), 6.02(u) or 6.06(e), occurring during the Reference Period or thereafter and through and including the date upon which the respective Permitted Business Acquisition or
incurrence of Indebtedness or Liens, Asset Sale, or dividend is consummated), (ii) in making any determination on a Pro Forma Basis, (x) all Indebtedness (including Indebtedness issued, incurred or assumed as a result of, or to finance, any
relevant transactions and for which the financial effect is being calculated, whether incurred under this Agreement or otherwise, but excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes and
amounts outstanding under any Permitted Receivables Financing, in each case not to finance any acquisition) issued, incurred, assumed or permanently repaid during the Reference Period (or, in the case of determinations made pursuant to the
definition of the term “Permitted Business Acquisition” or pursuant to Sections 2.11(b), 2.21, 6.01(r), 6.02(u) or 6.06(e), occurring during the Reference Period or thereafter and through and including the date upon which the respective Permitted
Business Acquisition or incurrence of Indebtedness or Liens, Asset Sale, or dividend is consummated) shall be deemed to have been issued, incurred, assumed or permanently repaid at the beginning of such period and (y) Interest Expense of such
person attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding clause (x) (A) bearing floating interest rates
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shall be computed on a pro forma basis as if the rate in effect on the date of such calculation had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such
Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months), and (B) in respect of a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting
officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP; and (iii) (A) any Subsidiary Redesignation then being designated, effect shall be given to such Subsidiary Redesignation and all
other Subsidiary Redesignations after the first day of the relevant Reference Period and on or prior to the date of the respective Subsidiary Redesignation then being designated, collectively, and (B) any designation of a Subsidiary as an
Unrestricted Subsidiary, effect shall be given to such designation and all other designations of Subsidiaries as Unrestricted Subsidiaries after the first day of the relevant Reference Period and on or prior to the date of the then applicable
designation of a Subsidiary as an Unrestricted Subsidiary, collectively.
Calculations made pursuant to the definition of the term “Pro Forma Basis” shall be determined in good faith by a Responsible Officer of the Borrower and may include adjustments to reflect operating
expense reductions and other operating improvements or synergies reasonably expected to result from such relevant transaction, which adjustments are reasonably anticipated by the Borrower to be realizable in connection with such relevant
transaction (or any similar transaction or transactions made in compliance with this Agreement or that require a waiver or consent of the Required Lenders) and are estimated on a good faith basis by the Borrower. The Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer of the Borrower setting forth such demonstrable or additional operating expense reductions and other operating improvements or synergies and information and calculations supporting them in
reasonable detail.
“Pro Forma Compliance” shall mean, at any date of determination, that the Borrower (together with its Subsidiaries on a consolidated basis) shall be in compliance, on a Pro Forma Basis
after giving effect on a Pro Forma Basis to the relevant transactions (including the assumption, the issuance, incurrence and permanent repayment of Indebtedness), with a Total Net First Lien Leverage Ratio not to exceed 4.00 to 1.00, recomputed as
at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries for which the financial statements and certificates required pursuant to Section 5.04 have been delivered, and the Borrower shall have
delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower to such effect, together with all relevant financial information.
“Projections” shall mean any projections of Holdings, the Borrower and the Subsidiaries included in the Information Memorandum and any other projections and any forward-looking
statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of Holdings, the Borrower or any of the Subsidiaries prior to the Acquisition Closing Date.
“Public Lender” shall have the meaning assigned to such term in Section 9.17.
“Qualified CFC Holding Company” shall mean a Wholly Owned Subsidiary of the Borrower that is a limited liability company, that (a) is in compliance with Section 6.11 and (b) the primary
asset of which consists of Equity Interests in either (i) a Foreign Subsidiary or (ii) a limited liability company that is in compliance with Section 6.11 and the primary asset of which consists of Equity Interests in a Foreign Subsidiary.
“Qualified Equity Interests” means any Equity Interests other than Disqualified Stock.
“Real Property” means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased
by any Loan Party, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures incidental to the ownership or lease thereof.
“Receivables Assets” shall mean accounts receivable (including any bills of exchange) and related assets and property from time to time originated, acquired or otherwise owned by the
Borrower or any Subsidiary.
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“Receivables Net Investment” shall mean the aggregate cash amount paid by the lenders or purchasers under any Permitted Receivables Financing in connection with their purchase of, or the making of loans
secured by, Receivables Assets or interests therein, as the same may be reduced from time to time by collections with respect to such Receivables Assets or otherwise in accordance with the terms of the Permitted Receivables Documents (but excluding
any such collections used to make payments of items included in clause (c) of the definition of “Interest Expense”); provided, however, that if all or any part of such Receivables Net Investment shall have been
reduced by application of any distribution and thereafter such distribution is rescinded or must otherwise be returned for any reason, such Receivables Net Investment shall be increased by the amount of such distribution, all as though such
distribution had not been made.
“Reference Period” shall have the meaning assigned to such term in the definition of the term “Pro Forma Basis.”
“Refinance” shall have the meaning assigned to such term in the definition of the term “Permitted Refinancing Indebtedness,” and “Refinanced” shall have a meaning
correlative thereto.
“Register” shall have the meaning assigned to such term in Section 9.04(b)(iv).
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Fund” shall mean, with respect to any Lender that is a fund that invests in bank or commercial loans and similar extensions of credit, any other fund that invests in bank or
commercial loans and similar extensions of credit and is advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or an Affiliate of such entity) that administers, advises or manages such Lender.
“Related Parties” shall mean, with respect to any specified person, such person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such
person and such person’s Affiliates.
“Related Sections” shall have the meaning assigned to such term in Section 6.04.
“Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or
migrating in, into, onto or through the environment.
“Remaining Present Value” shall mean, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease,
determined with a discount rate equal to a market rate of interest for such lease reasonably determined at the time such lease was entered into.
“Reportable Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice
period referred to in Section 4043(a) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the IRS Code).
“Required Lenders” shall mean, at any time, Lenders having Loans outstanding that represent more than 50% of all Loans outstanding. The Loans of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.
“Required Percentage” shall mean, with respect to an Excess Cash Flow Period (or Excess Cash Flow Interim Period), 0%.
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“Required Prepayment Date” shall have the meaning assigned to such term in Section 2.11(d).
“Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the
administration of the obligations of such person in respect of this Agreement.
“Retained Excess Cash Flow Overfunding” shall mean, at any time, in respect of any Excess Cash Flow Interim Period as to which the corresponding Excess Cash Flow Period has ended at
such time, a portion of the cumulative Excess Cash Flow for such Excess Cash Flow Interim Period equal to the amount, if any, by which the Retained Percentage of Excess Cash Flow for such Excess Cash Flow Interim Period exceeds the Retained
Percentage of Excess Cash Flow for such corresponding Excess Cash Flow Period.
“Retained Percentage” shall mean, with respect to any Excess Cash Flow Period (or Excess Cash Flow Interim Period), (a) 100% minus (b) the Required Percentage with
respect to such Excess Cash Flow Period (or Excess Cash Flow Interim Period).
“Revaluation Date” shall mean, with respect to any Term Loan denominated in Euros, each of the following: (a) (i) the date of the Borrowing of such Term Loan and (ii) each date of a
conversion into or continuation of such Term Loan pursuant to the terms of this Agreement and (b) any additional date as the Administrative Agent may determine at any time when an Event of Default exists.
“Revolving Credit Agreement” shall mean that certain Amended and Restated Revolving Credit Agreement dated as of April 3, 2007, among Holdings, the Borrower, certain subsidiaries of
the Borrower party thereto, the lenders and agents party thereto and Bank of America, as administrative agent, as amended, restated, supplemented, waived, replaced, restructured, repaid, refunded, refinanced or otherwise modified from time to time,
including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or increasing the amount
loaned thereunder or altering the maturity thereof.
“Revolving Facility Loans” shall mean loans made pursuant to and in accordance with the Revolving Credit Agreement.
“Revolving Facility Collateral Agent” shall have the meaning assigned to such term in the Senior Lender Intercreditor Agreement.
“Revolving Facility Secured Parties” shall have the meaning assigned thereto in the Senior Lender Intercreditor Agreement.
“Revolving Loan Documents” shall mean the “Loan Documents” as defined in the Revolving Credit Agreement.”
“RPC Incremental Amendment” shall mean that certain Incremental Assumption Agreement and Amendment, dated as of
July 1, 2019, by and among Holdings, the Borrower, the Administrative Agent, the Lenders party thereto and the Subsidiary Loan Parties party thereto.
“RPC Incremental Amendment Arrangers” shall have the meaning assigned to the term “Amendment
Arrangers” in the RPC Incremental Amendment.
“RPC Incremental Amendment Effective Date” shall have the meaning assigned to the term
“Effective Date” in the RPC Incremental Amendment.
“Rule 2.7 Announcement” shall mean the press announcement released by Acquisition SPV and the Target to announce a firm intention on the part of Acquisition SPV to make an offer to
acquire the Target Shares on the terms of the Scheme or the Offer (as applicable) in accordance with Rule 2.7 of the Takeover Code.
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“S&P” shall mean Standard & Poor’s Ratings Group, Inc.
“Sale and Lease-Back Transaction” shall have the meaning assigned to such term in Section 6.03.
“Scheme” means a scheme of arrangement made pursuant to Part 26 of the Companies Act of 2006 between the Target and the holders of the Target Shares in relation to the transfer of the
entire issued and to be issued share capital of the Target (with or subject to any modification, addition or condition approved or imposed by the Court and agreed by Acquisition SPV and the Target) as contemplated by the Scheme Circular (with or
subject to any modification, addition or condition approved or imposed by the Court and agreed by Acquisition SPV and the Target).
“Scheme Circular” means a document issued by or on behalf of the Target to shareholders of the Target setting out the proposals for the Scheme stating the recommendation of the Scheme
to the shareholders of Target by the board of directors of Target including the notice of General Meeting and the Court Meeting.
“Scheme Documents” means the Rule 2.7 Announcement, the Scheme Circular together with the notices of the Court Meeting and General Meeting which accompany that Scheme Circular , the
Scheme Resolutions, any other document dispatched by or on behalf of the Target to its shareholders in connection with the Scheme.
“Scheme Resolutions” means, if the Acquisition proceeds by way of a Scheme, the resolutions of the Target shareholders for the implementation of the Scheme referred to and
substantially in the form to be set out in the Scheme Circular.
“SEC” shall mean the Securities and Exchange Commission or any successor thereto.
“Second Priority Intercreditor Agreement” shall mean the Second Amended and Restated Intercreditor Agreement dated February 5, 2008, as amended, supplemented or otherwise modified from
time to time, among Holdings, the Borrower, the Subsidiary Loan Parties, each Subsidiary that becomes a party thereto after the date hereof, the Collateral Agent, the Administrative Agent, the “Administrative Agent” under the Revolving Credit
Agreement and the “Collateral Agent” under the Revolving Credit Agreement and U.S. Bank National Association, as Second Priority Agent.
“Secured Parties” shall mean the “Term Loan Secured Parties” as defined in the Collateral Agreement.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Security Documents” shall mean the Mortgages, the Collateral Agreement, the Foreign Pledge Agreements and each of the security agreements and other instruments and documents executed
and delivered pursuant to any of the foregoing or pursuant to Section 5.10.
“Senior Fixed Collateral Intercreditor Agreement” shall mean the Senior Fixed Collateral Priority and Intercreditor Agreement dated February 5, 2008, as amended, supplemented or
otherwise modified from time to time, among Holdings, the Borrower, the Subsidiary Loan Parties, each Subsidiary that becomes a party thereto after the date hereof, the Collateral Agent, the Administrative Agent.
“Senior Lender Intercreditor Agreement” shall mean the Second Amended and Restated Senior Lender Priority and Intercreditor Agreement dated February 5, 2008, as amended, supplemented or
otherwise modified from time to time, among Holdings, the Borrower, the Subsidiary Loan Parties, each Subsidiary that becomes a party thereto after the date hereof, the Collateral Agent, the Administrative Agent, the “Administrative Agent” under
the Revolving Credit Agreement and the “Collateral Agent” under the Revolving Credit Agreement.
“Series” has the meaning set forth in Section 2.21(b).
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“Special Purpose Receivables Subsidiary” shall mean a direct or indirect Subsidiary of the Borrower established in connection with a Permitted Receivables Financing for the acquisition
of Receivables Assets or interests therein, and which is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with Holdings, the Borrower or any of the Subsidiaries (other than Special Purpose
Receivables Subsidiaries) in the event Holdings, the Borrower or any such Subsidiary becomes subject to a proceeding under the U.S. Bankruptcy Code (or other insolvency law).
“Specified Event of Default” means an Event of Default under Section 7.01(b), (c), (h) or (i).
“Squeeze-Out” shall mean any procedure under the Companies Act of 2006 for the compulsory
acquisition by Acquisition SPV of any minority shareholders in the Target.
“Squeeze-Out Date” shall mean the first date on which Acquisition SPV becomes entitled to
exercise the Squeeze-Out Procedures.
“Squeeze-Out Procedure” shall mean the procedure to be implemented following the date on
which the Offer is declared or becomes unconditional in all respects under sections 979 to 982 (inclusive) of the Companies Act of 2006 to acquire all of the outstanding Target Shares which Acquisition SPV has not acquired, contracted to acquire
or in respect of which it has not received valid acceptances.
“Statutory Reserves” shall mean, with respect to any currency, any reserve, liquid asset or similar requirements established by any Governmental Authority of the United States of
America or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency are made to which banks in such jurisdiction are subject for any category of deposits or liabilities customarily used to fund loans in such currency
or by reference to which interest rates applicable to Loans in such currency are determined.
“Sterling” or “£” means the official lawful currency of the United Kingdom.
“Subagent” shall have the meaning assigned to such term in Section 8.02.
“Subordinated Intercompany Debt” shall have the meaning assigned to such term in Section 6.01(e).
“subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or
indirectly, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” shall mean, unless the context otherwise requires, a subsidiary of the Borrower. Notwithstanding the foregoing (and except for purposes of Sections 3.09, 3.13, 3.15, 3.16,
5.03, 5.09 and 7.01(k), and the definition of Unrestricted Subsidiary contained herein), an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Borrower or any of its Subsidiaries for purposes of this Agreement.
“Subsidiary Loan Party” shall mean (a) each Domestic Subsidiary of the Borrower on the Closing Date and (b) each Domestic Subsidiary of the Borrower that becomes, or is required to
become, a party to the Collateral Agreement, the Second Priority Intercreditor Agreement, the Senior Fixed Collateral Intercreditor Agreement and the Senior Lender Intercreditor Agreement after the Closing Date.
“Subsidiary Redesignation” shall have the meaning provided in the definition of “Unrestricted Subsidiary” contained in this Section 1.01.
“Swap Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one
or more rates, currencies,
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commodities (including, for the avoidance of doubt, resin), equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of
Holdings, the Borrower or any of the Subsidiaries shall be a Swap Agreement.
“Syndication Agent” shall mean Deutsche Bank Securities Inc., as syndication agent.
“Takeover Code” shall mean the United Kingdom City Code on Takeovers and Mergers, as administered by the Takeover Panel, as may be amended from time to time.
“Takeover Panel” shall mean the United Kingdom Panel on Takeovers and Mergers.
“Target” shall mean RPC Group plc, a public limited company incorporated in England and Wales with registration number 11832875.
“Target Shares” shall mean the existing unconditionally allotted or issued and fully paid ordinary shares of Five pence each in the capital of the Target and any further such ordinary
shares which are unconditionally allotted or issued before the Acquisition Closing Date.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties (including stamp duties), deductions, withholdings or similar charges (including ad valorem charges) imposed by any Governmental Authority and any and all interest and penalties related thereto.
“Term Borrowing” shall mean any Incremental Term Borrowing.
“Term Facility” shall mean the Term Q Facility, the Term R Facility,
the Term S Facility, the Term T Facility, the Term U Facility, the Term V Facility and/or any or all of the
Incremental Term Facilities, as applicable.
“Term Facility Maturity Date” shall mean the Term Q Facility
Maturity Date, the Term R Facility Maturity Date, the Term S Facility Maturity Date, the Term T Facility Maturity Date, the
Term U Facility Maturity Date, the Term V Facility Maturity Date or any Incremental Term Facility Maturity Date, as applicable.
“Term Loan Installment Date” shall mean any Term R Loan Installment Date, Term U Loan Installment Date, Term V Loan Installment Date or any Incremental Term Loan
Installment Date.
“Term Loans” shall mean the Term Q Loans, the Term R Loans, the Term
S Loans, the Term T Loans, the Term U Loans, the Term V Loans and/or the Incremental Term Loans.
“Term Q Facility” shall mean the Term Q Loan Commitments and the Term Q Loans made hereunder.
“Term Q Facility Effective Date” shall have the meaning assigned to the term “Effective Date” in the Incremental Assumption Agreement and Amendment, dated as of February 12, 2018.
“Term Q Facility Maturity Date” shall mean October 1, 2022.
“Term Q Loan” shall have the meaning assigned to such term in the Incremental Assumption Agreement and Amendment, dated as of February 12, 2018.
“Term Q Loan Commitment” shall have the meaning assigned to such term in the Incremental Assumption Agreement and Amendment, dated as of February 12, 2018.
“Term R Facility” shall mean the Term R Loan Commitments and the Term R Loans made hereunder.
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“Term R Facility Effective Date” shall have the meaning assigned to the term “Effective Date” in the Incremental Assumption Agreement and Amendment, dated as of February 12, 2018.
“Term R Facility Maturity Date” shall mean January 19, 2024.
“Term R Loan” shall have the meaning assigned to such term in the Incremental Assumption Agreement and Amendment, dated as of February 12, 2018.
“Term R Loan Commitment” shall have the meaning assigned to such term in the Incremental Assumption Agreement and Amendment, dated as of February 12, 2018.
“Term R Loan Installment Date” shall have the meaning assigned to such term in Section 2.10(a)(i).
“Term S Facility” shall mean the Term S Loan Commitments and the Term S Loans made hereunder.
“Term S Facility Effective Date” shall have the meaning assigned to the term “Effective Date” in the Incremental Assumption Agreement and Amendment, dated as of May 16, 2018.
“Term S Facility Maturity Date” shall mean February 8, 2020.
“Term S Loan” shall have the meaning assigned to such term in the Incremental Assumption Agreement, dated as of May 16, 2018.
“Term S Loan Commitment” shall have the meaning assigned to such term in the Incremental Assumption Agreement, dated as of May 16, 2018.
“Term T Facility” shall mean the Term T Loan Commitments and the Term T Loans made hereunder.
“Term T Facility Effective Date” shall have the meaning assigned to the term “Effective Date” in the Incremental Assumption Agreement and Amendment, dated as of May 16, 2018.
“Term T Facility Maturity Date” shall mean January 6, 2021.
“Term T Loan” shall have the meaning assigned to such term in the Incremental Assumption Agreement, dated as of May 16, 2018.
“Term T Loan Commitment” shall have the meaning assigned to such term in the Incremental Assumption Agreement, dated as of May 16, 2018.
“Term U Facility” shall mean the Term U Loan Commitments and the Term U Loans made hereunder.
“Term U Facility Maturity Date” shall mean July 1, 2026.
“Term U Loan Commitment” shall mean with respect to each Lender, the commitment of such
Lender to make Term U Loans as set forth in Section 2.01(c). The initial amount of each Lender’s Term U Loan Commitment is set forth on Schedule 2.01 as amended on the RPC Incremental Amendment Effective Date, or in the Assignment and
Acceptance. The aggregate amount of the Term U Loan Commitments on the RPC Incremental Amendment Effective Date is $4,250,000,000.
“Term U Loan Installment Date” shall have the meaning assigned to such term in Section
2.10(a)(ii).
“Term U Loan Repricing Event” shall mean any prepayment or repayment of Term U Loans with the
proceeds of, or any conversion or amendment of Term U Loans into, any new or replacement tranche of term loans denominated in the same currency and bearing interest with an “effective yield” (taking into account, for example, upfront fees, interest rate spreads, interest rate benchmarks floors and original interest discount,
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but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection
therewith that are not shared with all lenders or holders of such new or replacement loans and without taking into account any fluctuations in the Adjusted LIBO Rate or comparable rate) less than the “effective yield” applicable to the Term U
Loans (as such comparative yields are determined consistent with generally accepted financial practices) (it being understood that (x) in each case, the yield shall exclude any structuring, commitment and arranger fees or other fees unless such
similar fees are paid to all lenders generally in the primary syndication of such new or replacement tranche of term loans and shall include any rate floors and any upfront or similar fees paid to all lenders generally in the primary syndication
of such new or replacement tranche of term loans or original issue discount payable with respect to such new or replacement tranche of term loans and (y) any such repayment, prepayment or conversion shall only constitute a Term U Loan Repricing
Event to the extent the primary purpose of such repayment, prepayment, conversion or amendment, as reasonably determined by the Borrower in good faith, is to reduce the “effective yield” on the Term U Loans).
“Term U Loans” shall mean term loans denominated in Dollars made by the Lenders to the
Borrower on the RPC Incremental Amendment Effective Date pursuant to the RPC Incremental Amendment.
“Term V Facility” shall mean the Term V Loan Commitments and the Term V Loans made hereunder.
“Term V Facility Maturity Date” shall mean July 1, 2026.
“Term V Loan Commitment” shall mean with respect to each Lender, the commitment of such
Lender to make Term V Loans as set forth in Section 2.01(c). The initial amount of each Lender’s Term V Loan Commitment is set forth on Schedule 2.01 as amended on the RPC Incremental Amendment Effective Date, or in the Assignment and
Acceptance. The aggregate amount of the Term V Loan Commitments on the RPC Incremental Amendment Effective Date is €1,075,000,000.
“Term V Loan Installment Date” shall have the meaning assigned to such term in Section
2.10(a)(iii).
“Term V Loan Repricing Event” shall mean any prepayment or repayment of Term V Loans with the
proceeds of, or any conversion or amendment of Term V Loans into, any new or replacement tranche of term loans bearing interest with an “effective yield” (taking into account, for example, upfront fees, interest rate spreads, interest rate
benchmarks floors and original interest discount, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders of such new or replacement loans
and without taking into account any fluctuations in the EURIBOR Rate or comparable rate) less than the “effective yield” applicable to the Term V Loans (as such comparative yields are determined consistent with generally accepted financial
practices) (it being understood that (x) in each case, the yield shall exclude any structuring, commitment and arranger fees or other fees unless such similar fees are paid to all lenders generally in the primary syndication of such new or
replacement tranche of term loans and shall include any rate floors and any upfront or similar fees paid to all lenders generally in the primary syndication of such new or replacement tranche of term loans or original issue discount payable with
respect to such new or replacement tranche of term loans and (y) any such repayment, prepayment or conversion shall only constitute a Term V Loan Repricing Event to the extent the primary purpose of such repayment, prepayment, conversion or
amendment, as reasonably determined by the Borrower in good faith, is to reduce the “effective yield” on the Term V Loans).
“Term V Loans” shall mean term loans denominated in Euros made by the Lenders to the Borrower
on the RPC Incremental Amendment Effective Date pursuant to the RPC Incremental Amendment.
“Test Period” shall mean, on any date of determination, the period of four consecutive fiscal quarters of the Borrower then most recently ended (taken as one accounting period).
“Total Net First Lien Leverage Ratio” means, on any date, the ratio of (a) First Lien Debt as of such date to (b) EBITDA for the period of four consecutive fiscal quarters of the
Borrower most recently ended as of such date, all determined on a consolidated basis in accordance with GAAP; provided, that EBITDA shall be determined for the relevant Test Period on a Pro Forma Basis.
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“Transaction Equity Investment” shall mean an Investment by the Borrower or another Subsidiary Loan Party in a Subsidiary of the Borrower that is not a Subsidiary Loan Party in an
aggregate amount necessary to fund the Acquisition and/or refinance existing debt of the Target.
“Transaction Expenses” means any fees or expenses incurred or paid by the Funds, Fund Affiliates, Holdings, the Borrower (or any direct or indirect parent of the Borrower) or any of its
Subsidiaries in connection with the Transactions, this Agreement and the other Loan Documents (including expenses in connection with Swap Agreements) and the transactions contemplated hereby and thereby.
“Transactions” shall mean (a) the consummation of the Business Combination; (b) the execution and delivery of the Loan Documents, the creation or continuation of the Liens pursuant to
the Security Documents, and the initial borrowings hereunder; (c) the refinancing of certain indebtedness in connection therewith; and (d) the payment of all Transaction Expenses.
“Type” shall mean, when used in respect of any Loan or Borrowing, the Rate by
reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the
Adjusted LIBO Rate, the EURIBOR Rate and the ABR.
“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance
with the assumptions used for funding the Plan pursuant to Section 412 of the IRS Code for the applicable plan year.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial
Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“U.S. Bankruptcy Code” shall mean Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.
“Unrestricted Cash” shall mean domestic cash or cash equivalents of the Borrower or any of its Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the
Borrower or any of its Subsidiaries.
“Unrestricted Subsidiary” shall mean (i) any subsidiary of the Borrower identified on Schedule 1.01(i) and (ii) any subsidiary of the Borrower that is acquired or
created after the Closing Date and designated by the Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided, that the Borrower shall only be permitted to so designate a new
Unrestricted Subsidiary after the Closing Date and so long as (a) no Default or Event of Default has occurred and is continuing or would result therefrom, (b) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by the
Borrower or any of its Subsidiaries) through Investments as permitted by, and in compliance with, Section 6.04(j), and any prior or concurrent Investments in such Subsidiary by the Borrower or any of its Subsidiaries shall be deemed to have been
made under Section 6.04(j), (c) without duplication of clause (b), any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof shall be treated as Investments pursuant to Section 6.04(j), and (d) such Subsidiary
shall have been designated an “unrestricted subsidiary” (or otherwise not be subject to the covenants and defaults) under the Existing Second Lien Notes Indentures, any other Indebtedness permitted to be incurred hereby and all Permitted
Refinancing Indebtedness in respect of any of the foregoing and all Disqualified Stock; provided, further, that at the time of the initial Investment by the Borrower or any of its Subsidiaries in such Subsidiary,
the Borrower shall designate such entity as an Unrestricted Subsidiary in a written notice to the Administrative Agent. The Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement (each, a “Subsidiary
Redesignation”); provided, that (i) such Unrestricted Subsidiary, both before and after giving effect to such designation, shall be a Wholly Owned Subsidiary of the Borrower, (ii) no Default or Event of Default has occurred
and is continuing or would result therefrom, (iii) all representations and warranties contained herein and in the other Loan Documents
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shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Subsidiary Redesignation (both before and after giving
effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and (iv) the Borrower shall have delivered to the
Administrative Agent an officer’s certificate executed by a Responsible Officer of the Borrower, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i) through (iii), inclusive.
“Waivable Mandatory Prepayment” shall have the meaning assigned to such term in Section 2.11(d).
“Wholly Owned Subsidiary” of any person shall mean a subsidiary of such person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar
shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person.
“Withdrawal Liability” shall mean 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.
“Working Capital” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided, that, for purposes of calculating Excess Cash Flow, increases or decreases in Working Capital shall be calculated without regard to any changes in
Current Assets or Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b) the effects of purchase accounting.
“Write-Down and Conversion Powers” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time
under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02. Terms
Generally. The definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as
amended, restated, supplemented or otherwise modified from time to time. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith.
SECTION 1.03. Effectuation
of Transactions. Each of the representations and warranties of Holdings and the Borrower contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions, unless the context otherwise
requires.
SECTION 1.04. Senior
Debt. The Obligations constitute (a) “First-Lien Indebtedness” pursuant to, and as defined in, the Senior Lender Intercreditor Agreement, (b) [reserved], and (c) “First-Priority Lien Obligations”
pursuant to, and as defined in, the Existing Second Lien Notes Indentures. This Agreement is a “Credit Agreement” for purposes of the Existing Second Lien Notes Indentures.
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SECTION 1.05. Currency
Equivalents Generally. The Administrative Agent shall determine or redetermine the Dollar Equivalent of each Loan denominated in a currency other than Dollars on each Revaluation Date and, unless otherwise specified herein, the
Administrative Agent may determine or redetermine the Dollar Equivalent of any amount hereunder on any other date in its reasonable discretion. For purposes of any calculation of whether the requisite percentage of Lenders have consented to any
amendment, waiver or modification of any Loan Document, the Administrative Agent may, in consultation with the Borrower, set a record date for determining the Dollar Equivalent amount of any Loan denominated in a currency other than Dollars so
long as such record date is within 30 days of the effective date of such amendment, waiver or modification.
SECTION 1.06. Lending Office. Any Lender may, by notice to the Administrative Agent and the Borrower,
designate an Affiliate of such Lender as its applicable Lending Office with respect to any Loans to be made by such Lender to any Borrower or make any Loan available to any Borrower by causing any foreign or domestic branch or Affiliate of
such Lender to make such Loans. In the event that a Lender designates an Affiliate of such Lender as its applicable Lending Office for Loans to any Borrower under any Facility or makes any Loan available to any Borrower by causing any
foreign or domestic branch or Affiliate of such Lender to make such Loans, then all Loans and reimbursement obligations to be funded by such Lender under such Facility to such Borrower shall be funded by such applicable Lending Office or
foreign or domestic branch or Affiliate, as applicable, and all payments of interest, fees, principal and other amounts payable to such Lender under such Facility shall be payable to such applicable Lending Office or foreign or domestic
branch or Affiliate, as applicable. Except as provided in the immediately preceding sentence, no designation by any Lender of an Affiliate as its applicable Lending Office or making any Loan available to any Borrower by causing any foreign
or domestic branch or Affiliate of such Lender to make such Loans shall alter the obligation of the Borrower to pay any principal, interest, fees or other amounts hereunder.
ARTICLE II
The Credits
The Credits
SECTION 2.01. Commitments.
Subject to the terms and conditions set forth herein:
(a) [Reserved].
(b) [Reserved].
(c) Each Lender having an
Incremental Term Loan Commitment agrees, subject to the terms and conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Term Loans to the Borrower, in an aggregate principal amount not to exceed its
Incremental Term Loan Commitment.
SECTION 2.02. Loans
and Borrowings.
(a) Each
Loan shall be made as part of a Borrowing consisting of Loans under the same Facility and of the same Type made by the Lenders ratably in accordance with their respective Commitments under the applicable Facility. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure
to make Loans as required.
(b) Subject
to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any ABR Loan or Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided, that any exercise of such option shall not affect the
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(c) obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under Section 2.15 or 2.17 solely in respect of increased costs
resulting from such exercise and existing at the time of such exercise.
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the applicable Term Facility Maturity
Date.
SECTION 2.03. Requests
for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by (A) telephone or (B) other Borrowing Request; provided that any telephonic notice must be confirmed promptly by
delivery to the Administrative Agent of a written Borrowing Request. Each notice, (a) in the case of a Eurocurrency Borrowing, not later than 12:00 p.m., Local Time, three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 12:00 noon, Local Time, one Business Day before the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount and currency of
the requested Borrowing;
(ii) the
date of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(iv) in the
case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be disbursed.
If no Interest Period is specified with respect to any requested Eurocurrency Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. [Reserved].
SECTION 2.05. [Reserved].
SECTION 2.06. Funding
of Borrowings.
(a) Each
Lender shall make each Term Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, Local Time, to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent
in New York City or London, as applicable.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative
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(c) Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding
the date of payment to the Administrative Agent, at (i) in the case of such Lender, the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
SECTION 2.07. Interest
Elections.
(a) Each
Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect
to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing; provided that no Borrowings denominated in Euros may be an ABR Borrowing.
(b) To make
an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the
Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of
a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(iv) the currency of the Borrowing; and
(v) (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term
“Interest Period.”
If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
44
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing denominated in Dollars prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing. If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Borrowing denominated in Euros prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing, the
Borrower shall be deemed to have selected an Interest Period for a Eurocurrency Borrowing of one month’s duration. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Dollar denominated Borrowing may be converted to or continued as a Eurocurrency Borrowing and, (ii) unless repaid, each Dollar denominated Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto and (iii) Borrowing denominated in Euros shall be deemed converted or continued as Eurocurrency
Borrowings of one month’s duration.
SECTION 2.08. Termination of Term Loan Commitments.
(a) The parties hereto acknowledge that each of the (i) the Term Q Loan Commitments terminated on the Term Q Facility Effective Date, (ii) the Term R Loan Commitments terminated
on the Term R Facility Effective Date, (iii) the Term S Loan Commitments terminated on the Term S Facility Effective Date and, (iv) the Term T Loan Commitments terminated on the Term T Facility Effective Date, (v) the Term U Loan Commitments terminated on the RPC Incremental Amendment Effective Date and (vi) the Term V Loan Commitments terminated on the
RPC Incremental Amendment Effective Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments under the Term Facility; provided, that each reduction of the Commitments under the Term
Facility shall be in an amount that is an integral multiple of $, with respect to the Initial Euro Term Loans, €1.0 million and not less than $€5.0 million. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments under a Term Facility shall be made ratably among the Lenders in accordance with their respective Commitments under such Term Facility.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Term Loan of such
Lender as provided in Section 2.10.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan
made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder and the currency, the Facility and Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
45
(d) The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided, that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory note (a “Note”). In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and reasonably acceptable to the Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall
at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).
SECTION 2.10. Repayment
of Term Loans.
(a) Subject
to the other paragraphs of this Section:
(i) the
Borrower shall repay Term R Loans on each date set forth below in the aggregate principal amount set forth opposite such date (each such date being referred to as an “Term R Loan Installment Date”):
|
Date
|
Amount of Term R Loans to Be Repaid
|
|||
|
June 30, 2019
|
$
|
$1,250,000
|
||
|
September 30, 2019
|
$
|
$1,250,000
|
||
|
December 31, 2019
|
$
|
$1,250,000
|
||
|
March 31, 2020
|
$
|
$1,250,000
|
||
|
June 30, 2020
|
$
|
$1,250,000
|
||
|
September 30, 2020
|
$
|
$1,250,000
|
||
|
December 31, 2020
|
$
|
$1,250,000
|
||
|
March 31, 2021
|
$
|
$1,250,000
|
||
|
June 30, 2021
|
$
|
$1,250,000
|
||
|
September 30, 2021
|
$
|
$1,250,000
|
||
|
December 31, 2021
|
$
|
$1,250,000
|
||
|
March 31, 2022
|
$
|
$1,250,000
|
||
|
June 30, 2022
|
$
|
$1,250,000
|
||
|
September 30, 2022
|
$
|
$1,250,000
|
||
|
December 31, 2022
|
$
|
$1,250,000
|
||
|
March 31, 2023
|
$
|
$1,250,000
|
||
|
June 30, 2023
|
$
|
$1,250,000
|
||
|
September 30, 2023
|
$
|
$1,250,000
|
||
|
December 31, 2023
|
$
|
$1,250,000
|
||
| Term R Facility Maturity Date |
$ | 466,250,000 | ||
(ii) From and after the
Certain Funds Period, the Borrower shall repay Term U Loans on the last day of each March, June, September and December (each such date being referred to as an “Term U Loan Installment Date”) (commencing on the day of the first fiscal quarter
ending after the Certain Funds Period) in a principal amount equal to 0.25% of the sum of the outstanding principal amount of Term U Loans immediately after the last day of the Certain Funds Period.
46
(iii) From and after the Certain
Funds Period, the Borrower shall repay Term V Loans on the last day of each March, June, September and December (each such date being referred to as an “Term V Loan Installment Date”) (commencing on the day of the first fiscal quarter ending
after the Certain Funds Period) in a principal amount equal to 0.25% of the sum of the outstanding principal amount of Term V Loans immediately after the last day of the Certain Funds Period.
(iv) (ii) in the event that any Incremental Term Loans are made on an Increased Amount Date, the Borrower shall repay such Incremental Term Loans on the dates and in the amounts set forth in the Incremental Assumption
Agreement (each such date being referred to as an “Incremental Term Loan Installment Date”); and
(v) (iii) to the extent not previously paid, outstanding Loans shall be due and payable on the applicable Term Facility Maturity Date.
(b) [Reserved].
(c) Prepayment
of the Loans from:
(i) all Net
Proceeds pursuant to Section 2.11(b) and Excess Cash Flow pursuant to Section 2.11(c) shall be applied to the Loans pro rata among the Term Facilities, with the application thereof in direct order to
amounts due on the next succeeding Term Loan Installment Dates under the applicable Term Facilities; and
(ii) any
optional prepayments of the Loans pursuant to Section 2.11(a) shall be applied as the Borrower may direct.
(d) Any mandatory prepayment of Loans pursuant to Section 2.11(b) or (c) shall be applied so that the aggregate amount of such prepayment is allocated among the Term Q Loans,
Term R Loans, Term S Loans, Term T Loans, Term U Loans and Term TV Loans, and Other Term Loans, if
any, pro rata based on the aggregate principal amount of outstanding the Term Q Loans, Term R Loans, Term S Loans, Term T Loans, Term U Loans and Term TV Loans, and Other Term Loans, if any (unless, with respect to Other Term Loans, the Incremental Assumption Agreement relating thereto does not so require) irrespective of whether such outstanding Loans are ABR Loans or
Eurocurrency Loans; provided, that if no Lenders exercise the right to waive a given mandatory prepayment of the Loans pursuant to Section 2.11(d), then, with
respect to such mandatory prepayment, prior to the repayment of any Term Loan, the Borrower may select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 2:00 p.m., Local Time, (i) in the case of an ABR Borrowing, one Business Day before the scheduled date of such repayment and (ii) in the case of a Eurocurrency Borrowing, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing. Repayments of Loans shall be accompanied by accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time to prepay any Loan in whole or in part, without premium or penalty (but subject to clauses (e) and (f) of this Section 2.11 and Section 2.16), in an aggregate principal amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(d).
(b) The
Borrower shall apply all Net Proceeds promptly upon receipt thereof to prepay Loans in accordance with paragraphs (c) and (d) of Section 2.10. Notwithstanding the foregoing, the Borrower may retain Net Proceeds pursuant to clause (b) of the
definition thereof, provided, that the Total Net
47
(c) First Lien Leverage Ratio on the last day of the Borrower’s then most recently completed fiscal quarter for which financial statements are available shall be less than or equal to 2.00 to 1.00.
(d) Not
later than 90 days after the end of each Excess Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such Excess Cash Flow Period and shall apply an amount equal to (i) the Required Percentage of such Excess Cash Flow, minus
(ii) to the extent not financed, using the proceeds of, without duplication, the incurrence of Indebtedness and the sale or issuance of any Equity Interests (including any capital contributions), the amount of any voluntary prepayments during
such Excess Cash Flow Period of Loans to prepay Loans in accordance with paragraphs (c) and (d) of Section 2.10. Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess
Cash Flow Period under Section 5.04(a), the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal year and the
calculation thereof in reasonable detail.
(e) Anything
contained herein to the contrary notwithstanding, in the event the Borrower is required to make any mandatory prepayment including, for the avoidance of doubt, payments under Section 2.10(a) (a “Waivable Mandatory Prepayment”) of
the Loans, not less than three Business Days prior to the date (the “Required Prepayment Date”) on which the Borrower elects (or is otherwise required) to make such Waivable Mandatory Prepayment, the Borrower shall notify
Administrative Agent of the amount of such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loan of the amount of such Lender’s pro rata share
of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to the Administrative Agent of its election to do so on or before the second Business Day
prior to the Required Prepayment Date (it being understood that any Lender which does not notify the Administrative Agent of its election to exercise such option on or before the first Business Day prior to the Required Prepayment Date shall be
deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, the Borrower shall pay to Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied (i) in an
amount equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such option (each, a “Declining Lender”), to prepay the Loans of such Declining Lenders (which prepayment
shall be applied to the scheduled Installments of principal of the Loans in accordance with Section 2.11(b)), and (ii) in an amount equal to that portion of the Waivable Mandatory Prepayment otherwise payable to those Lenders that have elected to
exercise such option, to the Borrower.
(f) Notwithstanding anything
herein to the contrary, in the event that, on or prior to the six-month anniversary of the RPC Incremental Amendment Effective Date, there occurs any Term U Loan Repricing Event or in connection with a Term U Loan Repricing Event constituting
an amendment or conversion of Term U Loans, any Lender is required to assign its Term U Loans pursuant to Section 2.19(c), the Borrower shall on the date of such Term U Loan Repricing Event pay to the Administrative Agent, for the account of
each Lender with such Term U Loans that are subject to such Term U Loan Repricing Event or are required to be so assigned, a fee equal to 1.00% of the principal amount of the Term U Loans subject to such Term U Loan Repricing Event or required
to be so assigned; provided that any prepayment of any Term U Loans made in connection with a Change in Control shall not require the payment of the 1.00% premium otherwise provided for in this Section 2.11(e).
(g) Notwithstanding anything
herein or in the Credit Agreement to the contrary, in the event that, on or prior to the six-month anniversary of the RPC Incremental Amendment Effective Date, there occurs any Term V Loan Repricing Event or in connection with a Term V Loan
Repricing Event constituting an amendment or conversion of Term V Loans, any Lender is required to assign its Term V Loans pursuant to Section 2.19(c), the Borrower shall on the date of such Term V Loan Repricing Event pay to the Administrative
Agent, for the account of each Lender with such Term V Loans that are subject to such Term V Loan Repricing Event or are required to be so assigned, a fee equal to 1.00% of
48
(h) the principal
amount of the Term V Loans subject to such Term V Loan Repricing Event or required to be so assigned; provided that any prepayment of any Term V Loans made in connection with a Change in Control shall not require the payment of the 1.00%
premium otherwise provided for in this Section 2.11(f).
SECTION 2.12. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent, for the account of the Administrative Agent, the agency fees set forth in the Fee Letter, as amended, restated, supplemented or otherwise modified from time to time, at the times specified
therein (the “Administrative Agent Fees”).
(b) All Fees
shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.13. Interest.
(a) The Loans denominated in Dollars comprising
each ABR Borrowing shall bear interest at the ABR plus the Applicable Margin. No Loans denominated in Euros may be
comprised of ABR Borrowings.
(b) The Loans denominated in Dollars
comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate, for the Interest Period in effect for such Borrowing plus the Applicable Margin. The Loans denominated in Euros comprising each Eurocurrency Borrowing shall bear interest at the EURIBOR Rate, for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(c) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any Fees or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii)
in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section; provided, that this paragraph (c) shall not apply to any Event of Default that has been
waived by the Lenders pursuant to Section 9.08.
(d) Accrued
interest on each Loan shall be payable in arrears (i) on each Interest Payment Date for such Loan, and (ii) on the applicable Term Facility Maturity Date; provided, that (x) interest accrued pursuant to paragraph (c) of this
Section shall be payable on demand, (y) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, and (z) in the event of any
conversion of any Eurocurrency Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the ABR at times when the ABR is based on the “prime rate” shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable ABR, Adjusted LIBO Rate or LIBO Rate or EURIBOR Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate
Rate of Interest. If prior to the commencement of any Interest Period for a Eurocurrency Borrowing:
49
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such
currency shall be ineffective and such Borrowing shall be converted to or continued as on the last day of the Interest Period applicable thereto an ABR Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing
shall be made as an ABR Borrowing.
SECTION 2.15. Increased
Costs.
(a) If any
Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate or EURIBOR Rate); or
(ii) impose
on any Lender or the London interbank market any other condition affecting this Agreement or Eurocurrency Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any
Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this
Agreement or the Loans made by, such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such
Lender’s holding company with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction
suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as specified in paragraph (a) or (b) of this Section 2.15 shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Promptly
after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.15, such Lender shall notify the Borrower thereof. Failure or delay on the part of any Lender to demand compensation pursuant to
this Section 2.15 shall not constitute a waiver of such Lender’s right to demand such compensation; provided, that the Borrower shall not be required to compensate a Lender pursuant to this Section 2.15 for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the
50
(e) Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(f) The
foregoing provisions of this Section 2.15 shall not apply in the case of any Change in Law in respect of Taxes, which shall instead be governed by Section 2.17.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any
Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurocurrency
Loan, such loss, cost or expense to any Lender shall be deemed to be the amount determined by such Lender (it being understood that the deemed amount shall not exceed the actual amount) to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate or
EURIBOR Rate, as applicable, that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert
or continue a Eurocurrency Loan, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits in dollars of a comparable amount and period from other banks in the Eurodollar market. 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 the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.17. Taxes.
(a) Any and
all payments by or on account of any obligation of any Loan Party hereunder shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided, that if a Loan Party shall be required to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent or any Lender, as applicable, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) In
addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Each
Loan Party shall indemnify the Administrative Agent and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender, as applicable, on or
with respect to any payment by or on account of any obligation of such Loan Party hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other 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 such Loan Party by a Lender or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Lender, shall be conclusive absent manifest error.
51
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any
Lender that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), to the extent such Lender is legally entitled to do so, at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by
applicable law as may reasonably be requested by the Borrower to permit such payments to be made without such withholding Tax or at a reduced rate; provided, that no Lender shall have any obligation under this paragraph (e) with
respect to any withholding Tax imposed by any jurisdiction other than the United States if in the reasonable judgment of such Lender such compliance would subject such Lender to any material unreimbursed cost or expense or would otherwise be
disadvantageous to such Lender in any material respect.
(f) Each
Lender shall deliver to the Borrower and the Administrative Agent on the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
two original copies of whichever of the following is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN (or any subsequent versions thereof or successors thereto), claiming eligibility for benefits of an income tax
treaty to which the United States of America is a party, (ii) duly completed copies of Internal Revenue Service Form W 8ECI (or any subsequent versions thereof or successors thereto), (iii) in the case of a Lender claiming the benefits of the
exemption for portfolio interest under section 871(h) or 881(c) of the IRS Code, (x) a certificate to the effect that, for United States federal income tax purposes, such Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of
the IRS Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3) or 881(c)(3)(B) of the IRS Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the IRS Code and that,
accordingly, such Lender qualifies for such exemption and (y) duly completed copies of Internal Revenue Service Form W-8BEN (or any subsequent versions thereof or successors thereto), (iv) duly completed copies of Internal Revenue Service Form
W-8IMY, together with forms and certificates described in clauses (i) through (iii) above (and additional Form W-8IMYs) as may be required or (v) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in
United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made. In addition, in each
of the foregoing circumstances, each Lender shall deliver such forms, if legally entitled to deliver such forms, promptly upon the obsolescence, expiration or invalidity of any form previously delivered by such Lender. Each Lender shall promptly
notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the United States of America or other taxing
authorities for such purpose). In addition, each Lender that is a “United States person” (as defined in Section 770(a)(30) of the IRS Code) shall deliver to the Borrower and the Administrative Agent two copies of Internal Revenue Service Form
W-9 (or any subsequent versions thereof or successors thereto) on or before the date such Lender becomes a party and upon the expiration of any form previously delivered by such Lender. Notwithstanding any other provision of this paragraph, a
Lender shall not be required to deliver any form pursuant to this paragraph that such Lender is not legally able to deliver.
(g) If the
Administrative Agent or a Lender receives a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which such Loan Party has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such
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(h) Loan Party under this Section 2.17 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender (including any
Taxes imposed with respect to such refund) as is determined by the Administrative Agent or such Lender, as applicable, in good faith and in its sole discretion, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that such Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay as soon as reasonably practicable the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section 2.17(g) shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Loan
Parties or any other person.
(i) If a
payment made by the Borrower hereunder or under any other Loan Document would be subject to United States federal withholding tax imposed pursuant to FATCA if any Lender fails to comply with applicable reporting and other requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the IRS Code, as applicable), such Lender shall use commercially reasonable efforts to deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable
law or as reasonably requested by the Borrower or the Administrative Agent, any documentation reasonably requested by the Borrower or the Administrative Agent reasonably satisfactory to the Borrower or the Administrative Agent for the Borrower
and the Administrative Agent to comply with their obligations under FATCA to determine the amount to withhold or deduct from such payment and to determine whether such Lender has complied with such applicable reporting and other requirements of
FATCA, provided, that, notwithstanding any other provision of this subsection, no Lender shall be required to deliver any document pursuant to this subsection that such Lender is not legally able to deliver or, if in the
reasonable judgment of such Lender, such compliance would subject such Lender to any material unreimbursed cost or expense or would otherwise be disadvantageous to such Lender in any material respect, provided, further,
that in the event a Lender does not comply with the requirements of this subsection 2.17(h) as a result of the application of the first proviso of this subsection 2.17(h), then such Lender shall be deemed for purposes of this Agreement to have
failed to comply with the requirements under FATCA.
SECTION 2.18. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest or fees, or of amounts payable under
Section 2.15, 2.16, or 2.17, or otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately available funds, without condition or deduction for any defense, recoupment, set-off or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to
the applicable account designated to the Borrower by the Administrative Agent, except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the persons entitled thereto. The Administrative Agent shall distribute
any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under the Loan Documents shall be made in Dollars (except that payments in respect of any Euro denominated Obligations shall be made in Euros). Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the
regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
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(b) If at
any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, interest and fees then due from the Borrower hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due
from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations
in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans (based on the Dollar Equivalent on the date of such purchase); provided, that (i) if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph (c) shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph (c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do
so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any
Lender shall fail to make any payment required to be made by it pursuant to Section 2.06(b) or 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by
the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation
Obligations; Replacement of Lenders.
(a) If any
Lender requests compensation under Section 2.15, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the future and (ii) would not subject such Lender to any material unreimbursed
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(b) cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(c) If any
Lender requests compensation under Section 2.15, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or is a Defaulting Lender, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, that (i) the Borrower shall
have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments. Nothing in this Section 2.19 shall
be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender.
(d) If any
Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 9.08 requires the consent of all of the Lenders affected and
with respect to which the Required Lenders shall have granted their consent, then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by deeming such Non-Consenting
Lender to have assigned its Loans, and its Commitments hereunder to one or more Assignees reasonably acceptable to the Administrative Agent (unless such assignee is a Lender, an Affiliate of a Lender or an Approved Fund); provided,
that: (i) all Obligations of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment, and (ii) the replacement Lender shall purchase the foregoing by
paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon. No action by or consent of the Non-Consenting Lender shall be necessary in connection with such
assignment, which shall be immediately and automatically effective upon payment of such purchase price. In connection with any such assignment the Borrower, Administrative Agent, such Non-Consenting Lender and the replacement Lender shall
otherwise comply with Section 9.04; provided, that if such Non-Consenting Lender does not comply with Section 9.04 within three Business Days after Borrower’s request, compliance with Section 9.04 shall not be required to effect
such assignment.
SECTION 2.20. Illegality. If any Lender reasonably determines that any Change in Law has made it
unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable Lending Office to make or maintain any Eurocurrency Loans, then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, any obligations of such Lender to make or continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency Borrowings shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall upon demand from such Lender (with a copy to the Administrative Agent), either, (i) in the case of Loans denominated in Dollars, convert all Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans., prepay such Loans or (ii)
in the case of Loans denominated in Euros, convert all Eurocurrency Borrowings of such Lender to an alternative interest rate mutually acceptable to the Borrower and the Lenders, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans, prepay such Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
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SECTION 2.21. Incremental
Commitments.
(a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments, in an amount not to exceed the Incremental Amount from one or more Incremental
Term Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion; provided, that each Incremental Term Lender shall be subject to the approval of the Administrative
Agent (which approval shall not be unreasonably withheld) unless such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund; provided, further, that (i) Incremental Term Loans may be
incurred without regard to the Incremental Amount solely to the extent that the Net Proceeds therefrom are used substantially concurrently with the incurrence of such Incremental Term Loans to prepay existing Term Loans in accordance with the
first sentence of Section 2.11(b) (it being understood that such Incremental Term Loans shall not be deemed Excluded Indebtedness). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which
shall be in minimum increments of $5.0 million (or, with respect to the Term V Loan Commitments, €5.0 million) and a minimum amount of $25.0 million (or, with respect to the Term V Loan Commitments, €25.0 million) or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan
Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Existing Term Loan Commitments or commitments to make term loans with pricing and/or
amortization terms different from the Existing Term Loans (“Other Term Loans”).
(b) The
Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term
Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans (all such Incremental Term Loans to be made pursuant to any Incremental Assumption Agreement,
a “Series”); provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with Existing Term Loans and, except as to
pricing, currency, amortization, voluntary prepayments and final maturity date, shall have (x) the same terms as the Existing Term Loans or (y) (I) such other terms as shall be reasonably satisfactory to the Administrative Agent or (II) that
would apply after the latest Term Facility Maturity Date determined as of the Amendment Effective Date, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term Facility Maturity Date, as applicable, and (iii) the
weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Existing Term Loans, as applicable. Each of the parties hereto hereby agrees that upon the effectiveness of
any Incremental Assumption Agreement this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section
9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding
the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (x) the representations and warranties set forth in Article III shall be true and correct in all
material respects as of such date, in each case, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects as of such earlier date), immediately after giving effect to such Borrowing and no Event of Default or Default shall have occurred and be continuing or would result therefrom, (y) if
the proceeds of such Incremental Term Loans are being used to fund a Limited Condition Acquisition, and the Lenders providing such Incremental Term Loans so agree, the availability thereof shall be subject to customary “SunGard” conditionality,
it being
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(d) understood that in any event, no Specified Event of
Default shall have occurred and be continuing or result from such Borrowing and the use of proceeds thereof or (z) if the proceeds of such Incremental Term Loans are being used to fund the Acquisition (such Incremental Term Loans, the “Acquisition Incremental Term Loans”), the Certain Funds Representations shall be true and correct in all material respects on and as of the Increased Amount Date as if made on and as of such date, except to the extent such Certain
Funds Representations relate to a particular date, in which case such Certain Funds Representations shall be true and correct in all material respects as of such particular date; provided that, to the extent that such representations and
warranties are qualified by materiality, material adverse effect or similar language, they shall be true and correct in all respects and no Certain Funds Default shall have occurred and be continuing or would result from the consummation of the
requested Borrowing or from the application of the proceeds therefrom, and in each case the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, and (ii) the
Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the
Administrative Agent, consistent with those delivered on the Closing Date under Article IV and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns)
as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption
Agreement, junior to) the existing Loans. In the case of any Acquisition Incremental Term Loans, if the applicable Incremental Term Lenders agree in the applicable Incremental Assumption Agreement, the proceeds of such Acquisition Incremental
Term Loans may be funded into escrow pursuant to arrangements satisfactory to the applicable Incremental Term Lenders and the Borrower.
(e) Each of
the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans) in the form of additional Existing Term Loans, as
applicable, when originally made, are included in each Borrowing of outstanding Existing Term Loans, as applicable, on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any
conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
ARTICLE III
Representations and Warranties
Representations and Warranties
On the Closing Date, the Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. Organization;
Powers. Except as set forth on Schedule 3.01, each of Holdings, the Borrower and each of the Material Subsidiaries (a) is a partnership, limited liability company or corporation duly organized, validly existing and in good
standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status under the laws of any jurisdiction of organization outside the United States) under the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business as now conducted, (c) is qualified to do business in each jurisdiction where such qualification is required, except where the failure so to qualify would not reasonably be
expected to have a Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is or will be
a party and, in the case of the Borrower, to borrow and otherwise obtain credit hereunder.
SECTION 3.02. Authorization.
The execution, delivery and performance by Holdings, the Borrower and each of the Subsidiary Loan Parties of each of the Loan Documents to which it is a party, and the borrowings hereunder and the transactions forming a part of the Transactions
(a) have been duly authorized by all corporate, stockholder, partnership or limited liability company action required to be obtained by Holdings, the Borrower and such Subsidiary Loan Parties and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, or of
57
the certificate or articles of incorporation or other constitutive documents (including any partnership, limited liability company or operating agreements) or by-laws of Holdings, the Borrower or any such Subsidiary Loan
Party, (B) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (C) any provision of any indenture, certificate of designation for preferred stock, agreement or other instrument to which Holdings, the
Borrower or any such Subsidiary Loan Party is a party or by which any of them or any of their property is or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default
under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, certificate of designation for preferred stock, agreement
or other instrument, where any such conflict, violation, breach or default referred to in clause (i) or (ii) of this Section 3.02(b), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (iii) result
in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by Holdings, the Borrower or any such Subsidiary Loan Party, other than the Liens created by the Loan Documents and Permitted
Liens.
SECTION 3.03. Enforceability.
This Agreement has been duly executed and delivered by Holdings and the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party that is party thereto will constitute, a legal, valid and binding
obligation of such Loan Party enforceable against each such Loan Party in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting
creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
SECTION 3.04. Governmental
Approvals. No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions, the perfection or maintenance of the Liens created
under the Security Documents or the exercise by any Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral, except for (a) the filing of Uniform Commercial Code financing statements, (b) filings
with the United States Patent and Trademark Office and the United States Copyright Office and comparable offices in foreign jurisdictions and equivalent filings in foreign jurisdictions, (c) recordation of the Mortgages, (d) such as have been
made or obtained and are in full force and effect, (e) such actions, consents and approvals the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect and (f) filings or other actions listed on
Schedule 3.04.
SECTION 3.05. Financial
Statements.
(a) [Reserved].
(b) The
audited consolidated balance sheets of each of Berry (or its predecessor) as at the end of 2018, 2017 and 2016 fiscal years, and the related audited consolidated statements of income, stockholders’ equity and cash flows for such fiscal years,
reported on by and accompanied by a report from Ernst & Young LLP, respectively, copies of which have heretofore been furnished to each Lender, present fairly in all material respects the consolidated financial position of Berry as at such
date and the consolidated results of operations, shareholders’ equity and cash flows of Berry for the years then ended.
SECTION 3.06. No
Material Adverse Effect. Since December 30, 2006, there has been no event, development or circumstance that has or would reasonably be expected to have a Material Adverse Effect.
SECTION 3.07. Title to
Properties; Possession Under Leases.
(a) Each of
Holdings, the Borrower and the Subsidiaries has valid fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all its Real Properties (including all Mortgaged Properties) and has valid title to
its personal property and assets, in each case, except for Permitted Liens and except for defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets
for their intended
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(b) purposes and except where the failure to have such title would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All such properties and assets are free and clear of Liens,
other than Permitted Liens.
(c) Each of
the Borrower and the Subsidiaries has complied with all obligations under all leases to which it is a party, except where the failure to comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect would not reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule
3.07(b), each of the Borrower and each of the Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
(d) As of
the Closing Date, none of the Borrower or the Subsidiaries has received any notice of any pending or contemplated condemnation proceeding affecting any material portion of the Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation that remains unresolved as of the Closing Date.
(e) None of
the Borrower or the Subsidiaries is obligated on the Closing Date under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein, except as permitted
under Section 6.02 or 6.05.
SECTION 3.08. Subsidiaries.
(a) Schedule 3.08(a) sets forth as of the Closing Date the name and jurisdiction of incorporation, formation or organization of each subsidiary of Holdings and, as to each such subsidiary, the percentage of each class of Equity
Interests owned by Holdings or by any such subsidiary.
(b) As of
the Closing Date, there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options or stock appreciation rights granted to employees or directors and directors’ qualifying
shares) of any nature relating to any Equity Interests of Holdings, the Borrower or any of the Subsidiaries, except rights of employees to purchase Equity Interests of Holdings in connection with the Transactions or as set forth on Schedule
3.08(b).
SECTION 3.09. Litigation;
Compliance with Laws.
(a) There
are no actions, suits or proceedings at law or in equity or, to the knowledge of the Borrower, investigations by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of Holdings or the Borrower,
threatened in writing against or affecting Holdings or the Borrower or any of the Subsidiaries or any business, property or rights of any such person which would reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(b) None of
Holdings, the Borrower, the Subsidiaries and their respective properties or assets is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any law, rule or regulation (including
any zoning, building, ordinance, code or approval or any building permit, but excluding any Environmental Laws, which are subject to Section 3.16) or any restriction of record or agreement affecting any Mortgaged Property, or is in default with
respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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SECTION 3.10. Federal
Reserve Regulations.
(a) None of
Holdings, the Borrower or the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
(b) No part
of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin
Stock or to refund indebtedness originally incurred for such purpose, or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.
SECTION 3.11. Investment
Company Act. None of Holdings, the Borrower and the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.12. Use of
Proceeds. [Reserved].
SECTION 3.13. Tax
Returns. Except as set forth on Schedule 3.13:
(a) Except as
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of Holdings, the Borrower and the Subsidiaries has filed or caused to be filed all federal, state, local and non-U.S. Tax returns
required to have been filed by it and (ii) taken as a whole, and each such Tax return is true and correct;
(b) Each of
Holdings, the Borrower and the Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due and payable by it on the returns referred to in clause (a) and all other Taxes or assessments (or made adequate provision (in
accordance with GAAP) for the payment of all Taxes due) with respect to all periods or portions thereof ending on or before the Closing Date (except Taxes or assessments that are being contested in good faith by appropriate proceedings in
accordance with Section 5.03 and for which Holdings, the Borrower or any of the Subsidiaries (as the case may be) has set aside on its books adequate reserves in accordance with GAAP), which Taxes, if not paid or adequately provided for, would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and
(c) Other than
as would not be, individually or in the aggregate, reasonably expected to have a Material Adverse Effect, as of the Closing Date, with respect to each of Holdings, the Borrower and the Subsidiaries, there are no claims being asserted in writing
with respect to any Taxes.
SECTION 3.14. No
Material Misstatements.
(a) All
written information (other than the Projections, estimates and information of a general economic nature or general industry nature) (the “Information”) concerning Holdings, the Borrower, the Subsidiaries, the Transactions and any
other transactions contemplated hereby included in the Information Memorandum or otherwise prepared by or on behalf of the foregoing or their representatives and made available to any Lenders or the Administrative Agent in connection with the
Transactions or the other transactions contemplated hereby, when taken as a whole, was true and correct in all material respects, as of the date such Information was furnished to the Lenders and as of the Closing Date and did not, taken as a
whole, contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances
under which such statements were made.
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(b) The
Projections and estimates and information of a general economic nature prepared by or on behalf of the Borrower or any of its representatives and that have been made available to any Lenders or the Administrative Agent in connection with the
Transactions or the other transactions contemplated hereby (i) have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the date thereof (it being understood that actual results may vary materially
from the Projections), as of the date such Projections and estimates were furnished to the Lenders and as of the Closing Date, and (ii) as of the Closing Date, have not been modified in any material respect by the Borrower.
(c) As of
the date hereof, to the knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to the date hereof to any Lender in connection with this Agreement is true and correct in all material
respects.
SECTION 3.15. Employee
Benefit Plans.
(a) Except
as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i) each Plan is in compliance in all material respects with the applicable provisions of ERISA and the IRS Code; (ii) no Reportable Event
has occurred during the past five years as to which the Borrower, Holdings, any of their Subsidiaries or any ERISA Affiliate was required to file a report with the PBGC, other than reports that have been filed; (iii) no Plan has any Unfunded
Pension Liability in excess of $50.0 million; (iv) no ERISA Event has occurred or is reasonably expected to occur; and (v) none of the Borrower, Holdings, the Subsidiaries and the ERISA Affiliates (A) has received any written notification that
any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be in reorganization or to be terminated or (B) has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(b) Each of
Holdings, the Borrower and the Subsidiaries is in compliance (i) with all applicable provisions of law and all applicable regulations and published interpretations thereunder with respect to any employee pension benefit plan or other employee
benefit plan governed by the laws of a jurisdiction other than the United States and (ii) with the terms of any such plan, except, in each case, for such noncompliance that would not reasonably be expected to have a Material Adverse Effect.
SECTION 3.16. Environmental
Matters. Except as set forth in Schedule 3.16 and except as to matters that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) no written notice, request for
information, order, complaint or penalty has been received by the Borrower or any of its Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings pending or, to the Borrower’s knowledge, threatened which
allege a violation of or liability under any Environmental Laws, in each case relating to the Borrower or any of its Subsidiaries, (ii) each of the Borrower and its Subsidiaries has all environmental permits, licenses and other approvals
necessary for its operations to comply with all applicable Environmental Laws and is, and during the term of all applicable statutes of limitation, has been, in compliance with the terms of such permits, licenses and other approvals and with all
other applicable Environmental Laws, (iii) to the Borrower’s knowledge, no Hazardous Material is located at, on or under any property currently owned, operated or leased by the Borrower or any of its Subsidiaries that would reasonably be expected
to give rise to any cost, liability or obligation of the Borrower or any of its Subsidiaries under any Environmental Laws, and no Hazardous Material has been generated, owned, treated, stored, handled or controlled by the Borrower or any of its
Subsidiaries and transported to or Released at any location in a manner that would reasonably be expected to give rise to any cost, liability or obligation of the Borrower or any of its Subsidiaries under any Environmental Laws, and (iv) there
are no agreements in which the Borrower or any of its Subsidiaries has expressly assumed or undertaken responsibility for any known or reasonably likely liability or obligation of any other person arising under or relating to Environmental Laws,
which in any such case has not been made available to the Administrative Agent prior to the date hereof.
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SECTION 3.17. Security
Documents.
(a) The
Collateral Agreement is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the
Pledged Collateral described in the Collateral Agreement, when certificates or promissory notes, as applicable, representing such Pledged Collateral are delivered to the Collateral Agent (or its bailee pursuant to the Senior Fixed Collateral
Intercreditor Agreement or the Senior Lender Intercreditor Agreement), and in the case of the other Collateral described in the Collateral Agreement (other than the Intellectual Property (as defined in the Collateral Agreement)), when financing
statements and other filings specified in the Perfection Certificate are filed in the offices specified in the Perfection Certificate, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such Collateral and, subject to Section 9-315 of the New York Uniform Commercial Code, the proceeds thereof, as security for the Obligations to the extent perfection can
be obtained by filing Uniform Commercial Code financing statements, in each case prior and superior in right to any other person (except Permitted Liens).
(b) When the
Collateral Agreement or a summary thereof is properly filed in the United States Patent and Trademark Office and the United States Copyright Office, and, with respect to Collateral in which a security interest cannot be perfected by such filings,
upon the proper filing of the financing statements referred to in paragraph (a) above, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties thereunder in all domestic Intellectual Property, in each case prior and superior in right to any other person (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States
Copyright Office may be necessary to perfect a lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the grantors after the Closing Date) (except Permitted Liens).
(c) Each
Foreign Pledge Agreement, if any, shall be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof to
the fullest extent permissible under applicable law. In the case of the Pledged Collateral described in a Foreign Pledge Agreement, when certificates representing such Pledged Collateral (if any) are delivered to the Collateral Agent (or its
bailee pursuant to the Senior Fixed Collateral Intercreditor Agreement or the Senior Lender Intercreditor Agreement), the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each case prior and superior in right to any other person.
(d) The
Mortgages (if any) executed and delivered on or before the Closing Date are, and the Mortgages to be executed and delivered after the Closing Date pursuant to Section 5.10 shall be, effective to create in favor of the Collateral Agent (for the
benefit of the Secured Parties) a valid Lien on all of the Loan Parties’ right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are filed or recorded in the proper real estate
filing or recording offices, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Mortgaged Property and, to the
extent applicable, subject to Section 9-315 of the Uniform Commercial Code, the proceeds thereof, in each case prior and superior in right to any other person, other than with respect to the rights of a person pursuant to Permitted Liens.
(e) Notwithstanding
anything herein (including this Section 3.17) or in any other Loan Document to the contrary, other than to the extent set forth in the applicable Foreign Pledge Agreements, neither the Borrower nor any other Loan Party makes any representation or
warranty as to the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security
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(f) interest in any Equity
Interests of any Foreign Subsidiary that is not a Loan Party, or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign law.
SECTION 3.18. Location
of Real Property and Leased Premises.
(a) The
Perfection Certificate lists completely and correctly, in all material respects, as of the Closing Date all material Real Property owned by Holdings, the Borrower and the Subsidiary Loan Parties and the addresses thereof. As of the Closing Date,
Holdings, the Borrower and the Subsidiary Loan Parties own in fee all the Real Property set forth as being owned by them on the Perfection Certificate.
(b) The
Perfection Certificate lists completely and correctly in all material respects, as of the Closing Date, all material real property leased by Holdings, the Borrower and the Subsidiary Loan Parties and the addresses thereof. As of the Closing
Date, Holdings, the Borrower and the Subsidiary Loan Parties have in all material respects valid leases in all the real property set forth as being leased by them on the Perfection Certificate.
SECTION 3.19. Solvency.
(a) Immediately
after giving effect to the Transactions on the Closing Date, (i) the fair value of the assets of the Borrower (individually) and Holdings, the Borrower and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and
liabilities, direct, subordinated, contingent or otherwise, of the Borrower (individually) and Holdings, the Borrower and its Subsidiaries on a consolidated basis, respectively; (ii) the present fair saleable value of the property of the Borrower
(individually) and Holdings, the Borrower and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Borrower (individually) and Holdings, the Borrower and its
Subsidiaries on a consolidated basis, respectively, on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Borrower (individually) and
Holdings, the Borrower and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Borrower
(individually) and Holdings, the Borrower and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed
to be conducted following the Closing Date.
(b) On the
Closing Date, neither Holdings nor the Borrower intends to, and neither Holdings nor the Borrower believes that it or any of its subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing
and amounts of cash to be received by it or any such subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such subsidiary.
SECTION 3.20. Labor
Matters. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes pending or threatened against Holdings, the Borrower or any of the
Subsidiaries; (b) the hours worked and payments made to employees of Holdings, the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable law dealing with such matters; and (c) all
payments due from Holdings, the Borrower or any of the Subsidiaries or for which any claim may be made against Holdings, the Borrower or any of the Subsidiaries, on account of wages and employee health and welfare insurance and other benefits
have been paid or accrued as a liability on the books of Holdings, the Borrower or such Subsidiary to the extent required by GAAP. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect,
the consummation of the Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any material collective bargaining agreement to which Holdings, the Borrower or any of the Subsidiaries (or
any predecessor) is a party or by which Holdings, the Borrower or any of the Subsidiaries (or any predecessor) is bound.
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SECTION 3.21. Insurance.
Schedule 3.21 sets forth a true, complete and correct description of all material insurance maintained by or on behalf of Holdings, the Borrower or the Subsidiaries as of the Closing Date. As of such date, such insurance is in
full force and effect.
SECTION 3.22. No
Default. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
SECTION 3.23. Intellectual
Property; Licenses, Etc. Except as would not reasonably be expected to have a Material Adverse Effect and as set forth in Schedule 3.23, (a) the Borrower and each of its Subsidiaries owns, or possesses the right to use,
all of the patents, patent rights, trademarks, service marks, trade names, copyrights and any and all applications or registrations for any of the foregoing (collectively, “Intellectual Property Rights”) that are reasonably
necessary for the operation of their respective businesses, without conflict with the rights of any other person, (b) to the best knowledge of the Borrower, no intellectual property right, proprietary right, product, process, method, substance,
part, or other material now employed, sold or offered by or contemplated to be employed, sold or offered by the Borrower or its Subsidiaries infringes upon any rights held by any other person, and (c) no claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrower, threatened.
SECTION 3.24. [Reserved].
SECTION 3.25. Sanctioned
Persons; Anti-Money Laundering; Etc.
(a) The
operations of the Borrower, the Loan Parties and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the money laundering statutes and the
rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Borrower or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Borrower, threatened.
(b) None of
the Borrower, the Loan Parties or any of their respective subsidiaries or to the knowledge of the Borrower or the Loan Parties, any director, officer, agent, employee or affiliate of the Borrower or any of its subsidiaries (i) is 50% or more
owned by or is acting on behalf of, an individual or individuals or entity or entities that are currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced by the Office of Foreign
Assets Control (“OFAC”) of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, the
United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons” and each such person,
a “Sanctioned Person”), (ii) is organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (collectively, “Sanctioned
Countries” and each, a “Sanctioned Country”) or (iii) will, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity making any Loans, whether as
Lender, advisor, investor or otherwise). Neither the Borrower, the Loan Parties nor any of their respective subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned
Country, in the preceding 3 years in violation of law, nor does the Borrower, the Loan Parties nor any of their respective subsidiaries have any plans to increase its dealings or transactions with or for the benefit of Sanctioned Persons, or with
or in Sanctioned Countries in violation of law.
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(c) None of
the Borrower, the Loan Parties or any of their respective subsidiaries nor, to the knowledge of the Borrower or the Loan Parties, any director, officer, agent, employee or Affiliate of the Borrower, the Loan Parties or any of their respective
subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Borrower, the Loan Parties and their respective subsidiaries and, to the knowledge of the Borrower and the Loan Parties, their controlled Affiliates have conducted their businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(d) Holdings,
the Borrower and the Subsidiaries are in compliance, in all material respects, with the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001, as amended from time to time)) (the “PATRIOT Act”).
SECTION 3.26. Acquisition
Documents.
(a) In the
case of an Offer, the Offer Documents contain all material terms of the Offer (taken as a whole) as at the date on which they were published.
(b) In the
case of a Scheme, the Scheme Documents contain all the material terms of the Scheme (taken as a whole) as at the date on which they were published.
ARTICLE IV
[Reserved].
[Reserved].
ARTICLE V
Affirmative Covenants
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect (other than in respect of contingent indemnification obligations for which no claim has been
made) and until the Commitments have been terminated and the Obligations (including principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document) shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower will, and will cause each of the Material Subsidiaries to:
SECTION 5.01. Existence;
Businesses and Properties.
(a) Do or
cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except, in the case of a Subsidiary of the Borrower, where the failure to do so would not reasonably be expected to have a Material
Adverse Effect, and except as otherwise expressly permitted under Section 6.05, and except for the liquidation or dissolution of Subsidiaries if the assets of such Subsidiaries to the extent they exceed estimated liabilities are acquired by the
Borrower or a Wholly Owned Subsidiary of the Borrower in such liquidation or dissolution; provided, that Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not Loan Parties and Domestic Subsidiaries may not
be liquidated into Foreign Subsidiaries.
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(b) Except
where the failure to do so would not reasonably be expected to have a Material Adverse Effect, do or cause to be done all things necessary to (i) lawfully obtain, preserve, renew, extend and keep in full force and effect the permits, franchises,
authorizations, patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect thereto necessary to the normal conduct of its business and (ii) at all times maintain and preserve all property necessary to the normal
conduct of its business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in
order that the business carried on in connection therewith, if any, may be properly conducted at all times (in each case except as expressly permitted by this Agreement).
SECTION 5.02. Insurance.
(a) Maintain,
with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by similarly situated companies engaged in the same or similar businesses operating in the same or similar
locations and cause the Collateral Agent to be listed as a co-loss payee on property and casualty policies and as an additional insured on liability policies.
(b) With
respect to any Mortgaged Properties, if at any time the area in which the Premises (as defined in the Mortgages) are located is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency
(or any successor agency), obtain flood insurance in such reasonable total amount as the Administrative Agent may from time to time reasonably require, and otherwise comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as it may be amended from time to time.
(c) In
connection with the covenants set forth in this Section 5.02, it is understood and agreed that:
(i) none of
the Administrative Agent, the Lenders, and their respective agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section 5.02, it being understood that (A) the Loan
Parties shall look solely to their insurance companies or any other parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Administrative
Agent, the Lenders, or their agents or employees. If, however, the insurance policies, as a matter of the internal policy of such insurer, do not provide waiver of subrogation rights against such parties, as required above, then each of Holdings
and the Borrower, on behalf of itself and behalf of each of its subsidiaries, hereby agrees, to the extent permitted by law, to waive, and further agrees to cause each of their Subsidiaries to waive, its right of recovery, if any, against the
Administrative Agent, the Lenders, and their agents and employees; and
(ii) the
designation of any form, type or amount of insurance coverage by the Administrative Agent under this Section 5.02 shall in no event be deemed a representation, warranty or advice by the Administrative Agent or the Lenders that such insurance is
adequate for the purposes of the business of Holdings, the Borrower and the Subsidiaries or the protection of their properties.
SECTION 5.03. Taxes.
Pay and discharge promptly when due all material Taxes, imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims which, if unpaid, might give
rise to a Lien upon such properties or any part thereof; provided, however, that such payment and discharge shall not be required with respect to any such Tax or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings, and Holdings, the Borrower or the affected Subsidiary, as applicable, shall have set aside on its books reserves in accordance with GAAP with respect thereto.
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SECTION 5.04. Financial
Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90
days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’
equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such year and, setting forth in comparative form the corresponding figures for
the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing and accompanied by an opinion of such
accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material
respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower
and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45
days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year beginning with the fiscal quarter ending June 30,
2007, for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of
such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the
prior fiscal year, and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related
statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and
its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(c) (x)
concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or
Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if
the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period, (iii) certifying a list of names of all Immaterial Subsidiaries for the following fiscal quarter, that each Subsidiary set forth on such list
individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate (together with all Unrestricted Subsidiaries) do not exceed the limitation set forth in clause (b) of the definition of the term Immaterial
Subsidiary, and (iv) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary, and (y) concurrently with any delivery of financial statements
under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by its policies of its national office, a certificate of the accounting firm opining on or certifying such statements stating whether they
obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations);
(d) promptly
after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other
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(e) materials
filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy
statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(f) within 90
days after the beginning of each fiscal year, a reasonably detailed consolidated quarterly budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal
year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be
accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(g) upon the
reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of
the information most recently received pursuant to this paragraph (f) or Section 5.10(g);
(h) promptly,
from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial
statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(i) in the event
that (i) in respect of the Existing Second Lien Notes, and any Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s
level on a consolidated basis and (ii) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or
indirectly of the capital stock of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct
or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) such consolidated reporting at such Parent Entity’s level in a
manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for the Borrower will satisfy the requirements of such paragraphs;
(j) promptly
upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most
recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, the Borrower, a Subsidiary or any
ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(k) promptly
upon Holdings, Borrower or Subsidiaries becoming aware of any fact or condition which would reasonably be expected to result in an ERISA Event, Borrower shall deliver to Administrative Agent a summary of such facts and circumstances and any
action it or Holdings or Subsidiaries intend to take regarding such facts or conditions.
SECTION 5.05. Litigation
and Other Notices. Furnish to the Administrative Agent (which will promptly thereafter furnish to the Lenders) written notice of the following promptly after any Responsible Officer of Holdings or the Borrower obtains actual knowledge
thereof:
(a) any Event of
Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;
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(b) the filing or commencement of, or any written
threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against Holdings, the Borrower or any of the Subsidiaries
as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;
(c) any other
development specific to Holdings, the Borrower or any of the Subsidiaries that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, a Material Adverse Effect; and
(d) the
development of any ERISA Event that, together with all other ERISA Events that have developed or occurred, would reasonably be expected to have a Material Adverse Effect.
SECTION 5.06. Compliance
with Laws. Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result
in a Material Adverse Effect; provided, that this Section 5.06 shall not apply to Environmental Laws, which are the subject of Section 5.09, or to laws related to Taxes, which are the subject of Section 5.03.
SECTION 5.07. Maintaining
Records; Access to Properties and Inspections. Maintain all financial records in accordance with GAAP and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default,
any Lender to visit and inspect the financial records and the properties of Holdings, the Borrower or any of the Subsidiaries at reasonable times, upon reasonable prior notice to Holdings or the Borrower, and as often as reasonably requested and
to make extracts from and copies of such financial records, and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default, any Lender upon reasonable prior notice to
Holdings or the Borrower to discuss the affairs, finances and condition of Holdings, the Borrower or any of the Subsidiaries with the officers thereof and independent accountants therefor (subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract).
SECTION 5.08. Use of Proceeds. Use
the proceeds of the Loans for general corporate purposes, or in the case of any Incremental Term Loan, for the purposes set out in the Incremental Assumption Agreement.
SECTION 5.09. Compliance with Environmental Laws.
Comply, and make reasonable efforts to cause all lessees and other persons occupying its properties to comply, with all Environmental Laws applicable to its operations and properties; and obtain and renew all material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in each case in accordance with Environmental Laws, except, in each case with respect to this Section 5.09, to the extent the failure to do so would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.10. Further Assurances; Additional
Security.
(a) Execute
any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens
in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain
satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) If any
asset (including any Real Property (other than Real Property covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value in an amount greater than $5.0 million is acquired by the
Borrower or any other Loan Party after the Closing
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(c) Date or owned by an entity
at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets that are not
required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents) (i) notify the Collateral Agent thereof, (ii) if such asset is comprised of Real Property with a value of over $10.0
million at the time of acquisition, deliver to Collateral Agent an updated Schedule 1.01(c) reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations and take, and cause the Subsidiary
Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section, all at the expense of the Loan Parties,
subject to paragraph (g) below.
(d) Within 5
Business Days notify the Collateral Agent of the acquisition of and, within 90 days (or such longer period as the Administrative Agent shall agree) after any such acquisition, grant and cause each of the Subsidiary Loan Parties to grant to the
Collateral Agent security interests and mortgages in such Real Property of the Borrower or any such Subsidiary Loan Parties as are not covered by the original Mortgages, to the extent acquired after the Closing Date and having a value at the time
of acquisition in excess of $10.0 million pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Agent on the Closing Date or in such other form as is reasonably satisfactory to the Collateral Agent
(each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of perfection thereof, record or file, and cause each such Subsidiary to record or file,
the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the
Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with
respect to each such Additional Mortgage, the Borrower shall deliver to the Collateral Agent contemporaneously therewith a title insurance policy, and a survey.
(e) If any
additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a
Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within five Business Days after the date such Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 60 days after the date such Subsidiary
is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such
Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(f) If any
additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a
Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 90 days after the
date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by
or on behalf of any Loan Party, subject to paragraph (g) below.
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(g) (i)
Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure or (C) in any Loan Party’s jurisdiction of organization; provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order
for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security
(h) interest in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(i) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 need not be satisfied with respect to (i) any Real Property held by the Borrower or any of its Subsidiaries as a lessee
under a lease, (ii) any vehicle, (iii) cash, deposit accounts and securities accounts (provided that this clause (iii) shall not affect the Collateral Agent’s right to
claim a security interest and Lien in proceeds of accounts, inventory or any other Collateral), (iv) any Equity Interests acquired after the Closing Date (other than Equity Interests in the Borrower or, in the case of any person
which is a Subsidiary, Equity Interests in such person issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) such Equity Interests constitute less than
100% of all applicable Equity Interests of such person and the person holding the remainder of such Equity Interests are not Affiliates, (B) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and
(C) with respect to such contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such
Subsidiary, (v) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition
thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by a
Permitted Lien) or (vi) those assets as to which the Collateral Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby; provided, that, upon the reasonable request of the Collateral Agent, the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of
the types described in clauses (iv) and (v) above.
SECTION 5.11. Conditions Subsequent. Holdings undertakes that:
(a) if the Squeeze-Out Date
occurs, it shall promptly commence the Squeeze-Out in respect of those Target Shares that have not been assented to the Offer and shall ensure that within four weeks thereafter notices in the prescribed form are given to the holders of such
Target Shares that Holdings desires to acquire such Target Shares in accordance with the Squeeze-Out;
(b) it shall procure as soon
as possible, and in any event within three (3) months of the RPC Incremental Amendment Effective Date where the Acquisition proceeds by means of a Scheme or within four (4) months of the RPC Incremental Amendment Effective Date where the
Acquisition proceeds by means of an Offer, that the Target shall be re-registered as a private company pursuant to Section 97 of the Companies Act of 2006; and
(c) shall use its best efforts
to procure that, by no later than the expiry of the Certain Funds Period, the Memorandum and Articles of Association of the Target shall be amended so that Holdings shall have the right to acquire any Target Shares which are required to be
issued by the Target pursuant to any rights of any person under any option scheme and evidence shall be provided to the Administrative Agent of such amendment.
ARTICLE VI
Negative Covenants
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect (other than in respect of contingent indemnification obligations for which no claim has been
made) and until the Commitments have been terminated and the Obligations (including principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document) have been paid in full, unless the Required
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Lenders shall otherwise consent in writing, the Borrower will not, and will not permit any of the Material Subsidiaries to:
SECTION 6.01. Indebtedness.
Incur, create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness
existing on the Closing Date and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person
not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness
created hereunder and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness
pursuant to Swap Agreements;
(d) Indebtedness
owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or
liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business; provided, that upon the incurrence of Indebtedness
with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness
of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan
Parties shall be subject to Section 6.04(b) and (ii) Indebtedness of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Loan Party to Holdings or any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated
Intercompany Debt”) shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;
(g) Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided, that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the Borrower of its incurrence and (y) such Indebtedness in respect of credit or purchase cards
is extinguished within 60 days from its incurrence;
(h) (i)
Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which
Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) if immediately after giving effect to such
acquisition, merger or consolidation, the assumption and incurrence of any Indebtedness and any related transactions, the Total Net First Lien Leverage Ratio of the Borrower on a Pro Forma Basis would be greater than 4.00 to 1.00, then the amount
of Indebtedness incurred pursuant to this paragraph (h) shall not exceed the greater of $140 million and 4.00% of Consolidated Total Assets as of the end of the fiscal
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(i) quarter immediately prior to
the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital
Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in
order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof; provided, that, if immediately after giving effect to such transaction, the Total Net First Lien Leverage Ratio of
the Borrower on a Pro Forma Basis would be greater than 4.00 to 1.00, then the amount of Indebtedness incurred pursuant to this paragraph (i), when combined with the Remaining Present Value of outstanding leases permitted under Section 6.03,
shall not exceed the greater of $150 million and 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(k) Capital
Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(l) other
Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $175 million and 5.0% of Consolidated Total Assets as of the
end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(m) Indebtedness
of (i) the Borrower pursuant to (i) the Existing Second Lien Notes in an aggregate principal amount that is not in excess of $2,100,000,000, (ii) the Borrower or any Subsidiary pursuant to the extensions of credit under the Revolving Credit
Agreement; provided that the amount of Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party pursuant to this clause (ii) shall not exceed the greater of (1) $500,000,000 and (2) 4.0% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and (iii) the Borrower or any Subsidiary, as applicable, pursuant to any
Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(n) Guarantees
(i) by the Borrower and the Subsidiary Loan Parties of the Indebtedness described in paragraph (1) of this Section 6.01 and so long as any Liens securing the Guarantee of the Existing Second Lien Notes and/or Obligations (as defined therein)
under the Second Lien Bridge Credit Agreement or any Permitted Refinancing Indebtedness in respect thereof are subject to the Second Priority Intercreditor Agreement, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the
Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that is not a Subsidiary
Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iv) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries
incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by 6.04 (other than
Section 6.04(v));
(o) Indebtedness
arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Transactions and any Permitted
Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary
for the purpose of financing such acquisition;
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(p) Indebtedness
in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of
business;
(q) Indebtedness
supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(r) Indebtedness
consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(s) (i) other
Indebtedness incurred by the Borrower or any Subsidiary Loan Party; provided that (A) at the time of the incurrence of such Indebtedness and after giving effect thereto (other than Indebtedness incurred to finance the Acquisition
Transactions), no Default or Event of Default shall have occurred and be continuing or would result therefrom (or, if the proceeds of such Indebtedness are being used to fund a Limited Condition Acquisition, at the time of the incurrence of such
Indebtedness and after giving effect thereto, no Specified Event of Default shall have occurred and be continuing or would result therefrom), (B) except as set forth in the proviso below, the Borrower and its Subsidiaries shall be in Pro Forma
Compliance after giving effect to the issuance incurrence or assumption of such Indebtedness and (C) except as set forth in the proviso below, in the case of any such Indebtedness that is secured, immediately after giving effect to the issuance,
incurrence or assumption of such Indebtedness, the Total Net First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 4.00 to 1.00; provided, further, that in the case of Indebtedness incurred to finance the
Acquisition Transactions, if immediately after giving effect to such incurrence the Total Net First Lien Leverage Ratio on a Pro Forma Basis would be greater than 4.00:1.00, such Indebtedness shall nonetheless be permitted to be incurred on an
unsecured basis and/or subordinated lien basis to the Loans and (ii) Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness
of Foreign Subsidiaries; provided that the aggregate amount of Indebtedness incurred under this clause (s), when aggregated with all other Indebtedness incurred and outstanding pursuant to this clause (s), shall not exceed the
greater of $100 million and 10% of the consolidated assets of the Foreign Subsidiaries at the time of such incurrence;
(u) unsecured
Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are
incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in
connection with the borrowing of money or any Swap Agreements;
(v) Indebtedness
representing deferred compensation to employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness
in connection with Permitted Receivables Financings; provided that the proceeds thereof are applied in accordance with Section 2.11(b);
(x) Indebtedness
of the Foreign Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the
Administrative Agent or one or more of the Lenders and (in each case) established for such Foreign Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but
only to the extent, provided in Section 6.02(b) and in the Security Documents;
(y) Indebtedness
incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $175 million or 5.0% of Consolidated
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(z) Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements
have been delivered pursuant to Section 5.04;
(aa) Indebtedness
consisting of promissory notes issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of
Holdings or any Parent Entity permitted by Section 6.06;
(bb) Indebtedness
consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Business Acquisitions or any other Investment
expressly permitted hereunder; and
(cc) all premium
(if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (z) above.
SECTION 6.02. Liens.
Create, incur, assume or permit to exist any Lien on any property or assets (including stock or other securities of any person, including the Borrower and any Subsidiary) at the time owned by it or on any income or revenues or rights in respect
of any thereof, except the following (collectively, “Permitted Liens”):
(a) Liens on
property or assets of the Borrower and the Subsidiaries existing on the Closing Date and set forth on Schedule 6.02(a) or, to the extent not listed in such Schedule, where such property or assets have a fair market value that
does not exceed $10.0 million in the aggregate, and any modifications, replacements, renewals or extensions thereof; provided, that such Liens shall secure only those obligations that they secure on the Closing Date (and any
Permitted Refinancing Indebtedness in respect of such obligations permitted by Section 6.01(a)) and shall not subsequently apply to any other property or assets of the Borrower or any Subsidiary other than (A) after-acquired property that is
affixed or incorporated into the property covered by such Lien, and (B) proceeds and products thereof;
(b) any Lien
created under the Loan Documents (including, without limitation, Liens created under the Security Documents securing obligations in respect of Swap Agreements owed to a person that is a Lender or an Affiliate of a Lender at the time of entry into
such Swap Agreements) or permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage and, provided that (with respect to Liens securing Indebtedness of the Borrower or a Subsidiary Loan Party) such
Liens are subject to the terms of the Senior Lender Intercreditor Agreement, any Lien securing the Revolving Credit Agreement or any Indebtedness or obligations under the Revolving Credit Agreement or any “Loan Documents” thereunder; provided,
however, in no event shall the holders of the Indebtedness under the Overdraft Line have the right to receive proceeds in respect of a claim in excess of $20 million in the aggregate (plus (i) any accrued and
unpaid interest in respect of Indebtedness incurred by the Borrower and the Subsidiaries under the Overdraft Line and (ii) any accrued and unpaid fees and expenses owing by the Borrower and the Subsidiaries under the Overdraft Line) from the
enforcement of any remedies available to the Secured Parties under all of the Loan Documents;
(c) any Lien on
any property or asset of the Borrower or any Subsidiary securing Indebtedness or Permitted Refinancing Indebtedness permitted by Section 6.01(h); provided, that such Lien (i) does not apply to any other property or assets of the
Borrower or any of the Subsidiaries not securing such Indebtedness at the date of the acquisition of such property or asset (other than after acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such
date and which Indebtedness and other obligations are permitted hereunder that require a pledge of after acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would
not have applied but for such acquisition), (ii) such Lien is not created in contemplation of or in connection with such acquisition and (iii) in the case of a Lien securing Permitted Refinancing Indebtedness, any such Lien is permitted, subject
to compliance with clause (e) of the definition of the term “Permitted Refinancing Indebtedness”;
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(d) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent or that are being contested in
compliance with Section 5.03;
(e) Liens
imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days
or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or any Subsidiary shall have set aside on its books reserves in accordance with GAAP;
(f) (i) pledges
and deposits and other Liens made in the ordinary course of business in compliance with the Federal Employers Liability Act or any other workers’ compensation, unemployment insurance and other social security laws or regulations and deposits
securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of (including
obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Subsidiary;
(g) deposits to
secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance and return of money bonds, bids, leases, government
contracts, trade contracts, agreements with utilities, and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred in the ordinary course of business, including those
incurred to secure health, safety and environmental obligations in the ordinary course of business;
(h) zoning
restrictions, survey exceptions and such matters as an accurate survey would disclose, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, special assessments, rights-of-way, covenants, conditions, restrictions
and declaration on or with respect to the use of Real Property, servicing agreements, development agreements, site plan agreements and other similar encumbrances incurred in the ordinary course of business and title defects or irregularities that
are of a minor nature and that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower or any Subsidiary;
(i) Liens
securing Indebtedness permitted by Section 6.01(i) (limited to the assets subject to such Indebtedness);
(j) Liens
arising out of capitalized lease transactions permitted under Section 6.03, so long as such Liens attach only to the property sold and being leased in such transaction and any accessions thereto or proceeds thereof and related property;
(k) Liens
securing judgments that do not constitute an Event of Default under Section 7.01(j);
(l) Liens
disclosed by the title insurance policies delivered on or subsequent to the Closing Date and pursuant to Section 5.10 and any replacement, extension or renewal of any such Lien; provided, that such replacement, extension or
renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal; provided, further, that the Indebtedness and other obligations
secured by such replacement, extension or renewal Lien are permitted by this Agreement;
(m) any interest
or title of a lessor or sublessor under any leases or subleases entered into by the Borrower or any Subsidiary in the ordinary course of business;
(n) Liens that
are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled
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(o) deposit or sweep accounts of the Borrower or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred
in the ordinary course of business of the Borrower or any Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any Subsidiary in the ordinary course of business;
(p) Liens
arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights;
(q) Liens
securing obligations in respect of trade-related letters of credit, banker’s acceptances or bank guarantees permitted under Section 6.01(f), (k) or (o) and covering the goods (or the documents of title in respect of such goods) financed by such
letters of credit, banker’s acceptances or bank guarantees and the proceeds and products thereof;
(r) leases or
subleases, licenses or sublicenses (including with respect to intellectual property and software) granted to others in the ordinary course of business not interfering in any material respect with the business of the Borrower and its Subsidiaries,
taken as a whole;
(s) Liens in
favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(t) Liens solely
on any cash earnest money deposits made by the Borrower or any of the Subsidiaries in connection with any letter of intent or purchase agreement in respect of any Investment permitted hereunder;
(u) Liens with
respect to property or assets of any Foreign Subsidiary securing Indebtedness of a Foreign Subsidiary permitted under Section 6.01;
(v) other Liens
with respect to property or assets of the Borrower or any Subsidiary; provided that (i) either (A) after giving effect to any such Lien and the incurrence of Indebtedness, if any, secured by such Lien is created, incurred,
acquired or assumed (or any prior Indebtedness becomes so secured) on a Pro Forma Basis, the Total Net First Lien Leverage Ratio on the last day of the Borrower’s then most recently completed fiscal quarter for which financial statements are
available shall be less than or equal to 4.00 to 1.00 or (B) such Liens shall be subordinated to the Liens granted hereunder, (ii) at the time of the incurrence of such Lien and after giving effect thereto (other than Indebtedness incurred to
financing the Acquisition Transactions), no Default or Event of Default shall have occurred and be continuing or would result therefrom (or, if the proceeds of such Indebtedness are being used to fund a Limited Condition Acquisition, at the time
of the incurrence of such Indebtedness and after giving effect thereto, no Specified Event of Default shall have occurred and be continuing or would result therefrom), (iii) the Indebtedness or other obligations secured by such Lien are otherwise
permitted by this Agreement, and (iv) to the extent such Liens are pari passu or subordinated to the Liens granted hereunder, an intercreditor agreement reasonably satisfactory to the Administrative Agent shall be entered into providing that such
new liens will be secured equally and ratably with the Liens granted hereunder, or, as applicable, subordinated to the Liens granted hereunder, in each case, on customary terms;
(w) the prior
rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(x) agreements
to subordinate any interest of the Borrower or any Subsidiary in any accounts receivable or other proceeds arising from inventory consigned by the Borrower or any of its Subsidiaries pursuant to an agreement entered into in the ordinary course of
business;
(y) Liens
arising from precautionary Uniform Commercial Code financing statements or consignments entered into in connection with any transaction otherwise permitted under this Agreement;
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(z) Liens on
Equity Interests in joint ventures securing obligations of such joint venture;
(aa) Liens on
securities that are the subject of repurchase agreements constituting Permitted Investments under clause (c) of the definition thereof;
(bb) Liens in
respect of Permitted Receivables Financings that extend only to the receivables subject thereto;
(cc) Liens on
goods or inventory the purchase, shipment or storage price of which is financed by a documentary letter of credit, bank guarantee or bankers’ acceptance issued or created for the account of the Borrower or any Subsidiary in the ordinary course of
business; provided, that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such letter of credit, bankers’ acceptance or bank guarantee to the extent permitted under Section 6.01;
(dd) Liens
securing insurance premiums financing arrangements, provided, that such Liens are limited to the applicable unearned insurance premiums;
(ee) Liens in
favor of the Borrower or any Subsidiary Loan Party; provided that if any such Lien shall cover any Collateral, the holder of such Lien shall execute and deliver to the Administrative Agent a subordination agreement in form and
substance reasonably satisfactory to the Administrative Agent;
(ff) Liens
securing obligations under the Second Lien Note Documents and any Permitted Refinancing Indebtedness in respect thereof, to the extent such Liens are subject to the Second Priority Intercreditor Agreement;
(gg) Liens on
not more than $30 million of deposits securing Swap Agreements; and
(hh) other Liens
with respect to property or assets of the Borrower or any Subsidiary securing obligations in an aggregate principal amount outstanding at any time not to exceed $30 million.
SECTION 6.03. Sale and
Lease-Back Transactions. Enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a “Sale and Lease-Back Transaction”); provided,
that a Sale and Lease-Back Transaction shall be permitted (a) with respect to property owned by the Borrower or any Domestic Subsidiary that is acquired after the Closing Date so long as such Sale and Lease-Back Transaction is consummated within
180 days of the acquisition of such property or (ii) by any Foreign Subsidiary regardless of when such property was acquired and (b) with respect to any property owned by the Borrower or any Domestic Subsidiary, (x) if at the time the lease in
connection therewith is entered into, and after giving effect to the entering into of such lease, (A) the Total Net First Lien Leverage Ratio is equal to or less than 4.00 to 1.00, or (B) if the Total Net First Lien Leverage Ratio is greater than
4.00 to 1.00, the Remaining Present Value of such lease, together with Indebtedness outstanding pursuant to Section 6.01(i) and the Remaining Present Value of outstanding leases previously entered into under this Section 6.03(b), shall not exceed
the greater of $150 million and 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date the lease was entered into for which financial statements have been delivered pursuant to Section 5.04 and (y) if
such Sale and Lease-Back Transaction is of property owned by the Borrower or any Domestic Subsidiary as of the Closing Date, the Net Proceeds therefrom are used to prepay the Loans to the extent required by Section 2.11(b).
SECTION 6.04. Investments,
Loans and Advances. Purchase, hold or acquire (including pursuant to any merger with a person that is not a Wholly Owned Subsidiary immediately prior to such merger) any Equity Interests, evidences of Indebtedness or other securities of,
make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, an “Investment”), any other person, except:
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(a) the
Transactions;
(b) (i)
Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any
Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any
write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to
Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed
an aggregate net amount equal to (x) the greater of (1) $100 million and (2) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered
pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any,
of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(b)(y), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the
amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, further, that intercompany current liabilities incurred in the ordinary course of business
in connection with the cash management operations of the Borrower and the Subsidiaries and intercompany liabilities incurred in connection with the Transaction shall not be included in calculating the limitation in this paragraph at any time.
(c) Permitted
Investments and Investments that were Permitted Investments when made;
(d) Investments
arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and
advances to officers, directors, employees or consultants of the Borrower or any Subsidiary (i) in the ordinary course of business not to exceed the greater of $25 million and 1.0% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 5.04, in the aggregate at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in
respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances
shall be contributed to the Borrower in cash as common equity;
(f) accounts
receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to
the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap
Agreements;
(h) Investments
existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h)
is not increased at any time above the amount of such Investment existing on the Closing Date;
(i) Investments
resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), and (u);
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(j) other
Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed (i) the greater of $225 million and 6.5% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually
received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to
apply to this Section 6.04(j)(ii), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount
thereof elected to be so applied;
(k) Investments
constituting Permitted Business Acquisitions;
(l) intercompany
loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments
received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the
Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments
of a Subsidiary acquired after the Closing Date or of an entity merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, to the extent permitted under this Section 6.04 and, in the case of
any merger or consolidation, in accordance with Section 6.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;
(o) acquisitions
by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent
Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees
by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of
business;
(q) Investments
to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity);
(r) Investments
in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $30 million and (ii) in respect of each such
contribution, a Responsible Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be
continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments
consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
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(t) Investments in the ordinary course of
business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments
in Foreign Subsidiaries not to exceed the greater of $70 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered
pursuant to Section 5.04, in the aggregate, as valued at the fair market value of such Investment at the time such Investment is made;
(v) Guarantees
permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in
the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments
by Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided
that the amount of any such investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments
arising as a result of Permitted Receivables Financings;
(z) Investments
received substantially contemporaneously in exchange for Equity Interests of any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit;
(aa) Investments
in joint ventures not in excess of the greater of $70 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant
to Section 5.04, in the aggregate; and
(bb) the
Acquisition Transactions (including Investments in connection therewith by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary made for tax planning and reorganization purposes, so long as the value of the
Collateral after giving effect to such Investments, taken as a whole, is not materially impaired (as reasonably determined by the Borrower, which determination shall be conclusive) and the Transaction Equity Investment.
The amount of Investments that may be made at any time pursuant to clause (C) of the proviso of Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Borrower, be
increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the
other Related Section.
SECTION 6.05. Mergers,
Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in
a series of transactions) all or any part of its assets (whether now owned or hereafter acquired) (including, in each case, pursuant to a Delaware LLC Division), or issue, sell, transfer or otherwise dispose of any Equity Interests of the
Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person or any division, unit or business of any person, except that this
Section shall not prohibit:
(a) (i) the
purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary and the sale of receivables by any Foreign Subsidiary pursuant to non-recourse factoring arrangements in the ordinary course of business of such
Foreign Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the
81
(b) if at the
time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or Delaware LLC Division of any Subsidiary into the Borrower in a transaction in which
the Borrower is the survivor, (ii) the merger, consolidation or Delaware LLC Division of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party and, in the case
of each of clauses (i) and (ii), no person other than the Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger, consolidation or Delaware LLC Division of any Subsidiary that is not a Subsidiary Loan Party into or with
any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such liquidation, dissolution or
change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge or effect a Delaware LLC Division with any other person in order to effect an Investment permitted
pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the
requirements of Section 5.10;
(c) sales,
transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a
Subsidiary Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 6.07 and shall be included in Section 6.05(g);
(d) Sale and
Lease-Back Transactions permitted by Section 6.03;
(e) Investments
permitted by Section 6.04, Permitted Liens, Dividends permitted by Section 6.06 and capital expenditures;
(f) the sale of
defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales,
transfers, leases, Delaware LLC Division or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that (i) (A) after
giving effect to such sale, transfer, lease, Delaware LLC Division or other disposition of assets, the application of proceeds thereof, the assumption and incurrence of any Indebtedness and any related transactions, the Total Net First Lien
Leverage Ratio of the Borrower on a Pro Forma Basis would be equal to or less than 4.00 to 1.00 or (B) if otherwise, then the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased, Delaware LLC
Division or otherwise disposed of in reliance upon this clause (g)(i)(B) shall not exceed, in any fiscal year of the Borrower, the greater of (x) $200 million and (y) 6.5% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04; (ii) no Default or Event of Default exists or would result therefrom and (iii) the Net Proceeds thereof are applied in
accordance with Section 2.11(b);
(h) Permitted
Business Acquisitions (including any merger, consolidation or Delaware LLC Division in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or Delaware LLC Division (i)
involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign
Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
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(i) leases,
licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales,
leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(k) acquisitions
and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the purchase
and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(m) any exchange
of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity
permitted hereunder, (ii) in the event of a swap with a fair market value in excess of $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and
(iii) in the event of a swap with a fair market value in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, that the Net
Proceeds, if any, thereof are applied in accordance with Section 2.11(b); provided, further, that (A) (i) after giving effect to such exchange, the application of proceeds thereof, the assumption and incurrence
of any Indebtedness and any related transactions, the Total Net First Lien Leverage Ratio of the Borrower on a Pro Forma Basis would be equal to or less than 4.00 to 1.00 or (ii) if otherwise, the aggregate gross consideration (including exchange
assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrower, the greater of $200 million and 6.5% of Consolidated Total Assets as of
the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04; (B) no Default or Event of Default exists or would result therefrom;
(n) the sale of
assets described on Schedule 6.05;
(o) the Business
Combination; and
(p) the purchase
and sale or other transfer of Receivables Assets in connection with a Permitted Supplier Finance Facility.
Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than (x) sales, transfers, leases, licenses or
other dispositions to Loan Parties pursuant to paragraph (c) of this Section 6.05 and (y) the transactions permitted by paragraph (e) of this Section 6.05 (solely with respect to Section 6.04(bb)) unless such disposition is for fair market value
and (ii) no sale, transfer or other disposition of assets in excess of $15.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided, that for
purposes of clause (ii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by
their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee
that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its
Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of 3.0% of
Consolidated Total Assets and $100 million at the time of the receipt of such
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Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be
deemed to be cash. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Subsidiary, such Collateral shall be sold free and clear of the Liens
created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.
SECTION 6.06. Dividends
and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than
dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire
or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified
Stock) of the person redeeming, purchasing, retiring or acquiring such shares); provided, however, that:
(a) any
Subsidiary of the Borrower may declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to
the Borrower or any Subsidiary that is a direct or indirect shareholder of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from
the perspective of the Borrower or such Subsidiary) based on their relative ownership interests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) the Borrower
may declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering
or private placement of debt or equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise taxes and other fees, taxes and expenses in connection with the maintenance of its existence and its (or any Parent
Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b), (v) the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of
Holdings (or any Parent Entity) attributable to Holdings, the Borrower or its Subsidiaries and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings or any Parent
Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of clauses (i), (ii) and (iii), the amount of such dividends and distributions shall not exceed the portion
of any amounts referred to in such clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% for so long as Holdings or such Parent Entity, as the case may be, owns no assets other than the Equity
Interests in the Borrower, Holdings or another Parent Entity);
(c) the Borrower
may declare and pay dividends or make other distributions to Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities)
held by then present or former directors, consultants, officers or employees of Holdings, the Borrower or any of the Subsidiaries or by any Plan or shareholders’ agreement then in effect upon such person’s death, disability, retirement or
termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this
paragraph (c) shall not exceed in any fiscal year $20 million (plus the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity
Interests of Holdings or any Parent Entity of Holdings to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements
and (y) of any key-man life insurance policies received during such calendar year), which, if not used in any year, may be carried forward to any subsequent calendar year;
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(d) noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a
portion of the exercise price of such options;
(e) the Borrower
may pay dividends to Holdings in an aggregate amount equal to the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this Section 6.06(e), such election to be specified in a written notice of a Responsible
Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has
occurred and is continuing or would result therefrom and, after giving effect thereto, that the Borrower and its Subsidiaries shall be in Pro Forma Compliance;
(f) the Borrower
may pay dividends on the Closing Date to consummate the Transactions;
(g) the Borrower
may pay dividends or distributions to allow Holdings or any Parent Entity to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such
person;
(h) the Borrower
may pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount equal to 6.0% per annum of the net proceeds received by the Borrower from any public offering of Equity Interests of the Borrower or
any direct or indirect parent of the Borrower; and
(i) the Borrower
may make distributions to Holdings or any Parent Entity to finance any Investment permitted to be made pursuant to Section 6.04; provided, that (A) such distribution shall be made substantially concurrently with the closing of
such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger (to the extent
permitted in Section 6.05) of the Person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment.
SECTION 6.07. Transactions
with Affiliates.
(a) Sell or
transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transaction with, any of its Affiliates or any known direct or indirect holder of 10% or more of any class of capital stock
of Holdings or the Borrower in a transaction involving aggregate consideration in excess of $5.0 million, unless such transaction is (i) otherwise permitted (or required) under this Agreement or (ii) upon terms no less favorable to the Borrower
or such Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with a person that is not an Affiliate.
(b) The
foregoing paragraph (a) shall not prohibit, to the extent otherwise permitted under this Agreement,
(i) any
issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership plans approved by the Board of
Directors of Holdings or of the Borrower,
(ii) loans
or advances to employees or consultants of Holdings (or any Parent Entity), the Borrower or any of the Subsidiaries in accordance with Section 6.04(e),
(iii) transactions
among the Borrower or any Subsidiary or any entity that becomes a Subsidiary as a result of such transaction (including via merger, consolidation or Delaware LLC Division in which a Subsidiary is the surviving entity) not prohibited by this
Agreement,
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(iv) the
payment of fees, reasonable out-of-pocket costs and indemnities to directors, officers, consultants and employees of Holdings, any Parent Entity, the Borrower and the Subsidiaries in the ordinary course of business (limited, in the case of any
Parent Entity, to the portion of such fees and expenses that are allocable to the Borrower and its Subsidiaries (which shall be 100% for so long as Holdings or such Parent Entity, as the case may be, owns no assets other than the Equity Interests
in the Borrower, Holdings or another Parent Entity and assets incidental to the ownership of the Borrower and its Subsidiaries)),
(v) permitted
agreements in existence on the Closing Date and set forth on Schedule 6.07 or any amendment thereto to the extent such amendment is not adverse to the Lenders in any material respect and other transactions, agreements and
arrangements described on Schedule 6.07 and any amendment thereto to the extent such amendment is not adverse to the Lenders in any material respect or similar transactions, agreements or arrangements entered into by the Borrower
or any of its Subsidiaries.
(vi) (A) any
employment agreements entered into by the Borrower or any of the Subsidiaries in the ordinary course of business, (B) any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or
similar rights with employees, officers or directors, and (C) any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract and transactions
pursuant thereto,
(vii) dividends,
redemptions and repurchases permitted under Section 6.06, including payments to Holdings (and any Parent Entity),
(viii) any
purchase by Holdings of the equity capital of the Borrower; provided, that any Equity Interests of the Borrower purchased by Holdings shall be pledged to the Administrative Agent on behalf of the Lenders pursuant to the
Collateral Agreement,
(ix) payments
by the Borrower or any of the Subsidiaries to any Person made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or
divestitures, which payments are approved by the majority of the Board of Directors of the Borrower, or a majority of disinterested members of the Board of Directors of the Borrower, in good faith,
(x) transactions
with Wholly Owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of business in a manner consistent with past practice,
(xi) any
transaction in respect of which the Borrower delivers to the Administrative Agent (for delivery to the Lenders) a letter addressed to the Board of Directors of the Borrower from an accounting, appraisal or investment banking firm, in each case of
nationally recognized standing that is (A) in the good faith determination of the Borrower qualified to render such letter and (B) reasonably satisfactory to the Administrative Agent, which letter states that such transaction is on terms that are
no less favorable to the Borrower or such Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with a person that is not an Affiliate,
(xii) [reserved],
(xiii) transactions
with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business and in a manner consistent with past practice,
(xiv) [reserved],
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(xv) the
issuance, sale, transfer of Equity Interests of Borrower to Holdings and capital contributions by Holdings to Borrower,
(xvi) the
Business Combination and all transactions in connection therewith,
(xvii) without
duplication of any amounts otherwise paid with respect to taxes, payments by Holdings (and any Parent Entity), the Borrower and the Subsidiaries pursuant to tax sharing agreements among Holdings (and any such Parent Entity), the Borrower and the
Subsidiaries on customary terms that require each party to make payments when such taxes are due or refunds received of amounts equal to the income tax liabilities and refunds generated by each such party calculated on a separate return basis and
payments to the party generating tax benefits and credits of amounts equal to the value of such tax benefits and credits made available to the group by such party,
(xviii) transactions
pursuant to any Permitted Receivables Financing, or
(xix) the
Acquisition Transactions and the Transaction Equity Investment.
SECTION 6.08. Business
of the Borrower and the Subsidiaries. Notwithstanding any other provisions hereof, engage at any time in any business or business activity other than any business or business activity conducted by any of them on the Closing Date and any
business or business activities incidental or related thereto, or any business or activity that is reasonably similar or complementary thereto or a reasonable extension, development or expansion thereof or ancillary thereto, and in the case of a
Special Purpose Receivables Subsidiary, Permitted Receivables Financing.
SECTION 6.09. Limitation
on Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.
(a) Amend or
modify in any manner materially adverse to the Lenders, or grant any waiver or release under or terminate in any manner (if such granting or termination shall be materially adverse to the Lenders), the articles or certificate of incorporation,
by-laws, limited liability company operating agreement, partnership agreement or other organizational documents of the Borrower or any of the Subsidiaries.
(b) (i)
Make, or agree or offer to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on the loans under any Indebtedness subordinated in
right of payment or any Permitted Refinancing Indebtedness in respect thereof or any preferred Equity Interests or any Disqualified Stock (“Junior Financing”), or any payment or other distribution (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination in respect of any Junior Financing except for (A) refinancings permitted by Section
6.01(l) or (r), (B) payments of regularly scheduled interest, and, to the extent this Agreement is then in effect, principal on the scheduled maturity date of any Junior Financing, (C) payments or distributions in respect of all or any portion of
the Junior Financing with the proceeds contributed to the Borrower by Holdings from the issuance, sale or exchange by Holdings (or any Parent Entity) of Equity Interests made within eighteen months prior thereto, (D) the conversion of any Junior
Financing to Equity Interests of Holdings or any Parent Entity; and (E) so long as no Default or Event of Default has occurred and is continuing or would result therefrom and after giving effect to such payment or distribution the Borrower would
be in Pro Forma Compliance, payments or distributions in respect of Junior Financings prior to their scheduled maturity made, in an aggregate amount, not to exceed the sum of (x) $60 million and (y) the Cumulative Credit; or
(ii) Amend or modify, or permit the
amendment or modification of, any provision of Junior Financing, any Permitted Receivables Document, or any agreement, document or instrument evidencing or relating thereto, other than amendments or modifications that (A) are not in any manner
materially adverse to Lenders and that do not affect the subordination or payment provisions thereof (if any) in a manner adverse to the Lenders and (B) otherwise comply with the definition of “Permitted Refinancing Indebtedness”.
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(c) Permit any Material Subsidiary to enter into any agreement or instrument that by its terms restricts (i) the payment of
dividends or distributions or the making of cash advances to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary or (ii) the granting of Liens by the Borrower or such Material Subsidiary pursuant to the Security
Documents, in each case other than those arising under any Loan Document, except, in each case, restrictions existing by reason of:
(A) restrictions
imposed by applicable law;
(B) contractual
encumbrances or restrictions in effect on the Closing Date under Indebtedness existing on the Closing Date and set forth on Schedule 6.01, the Existing Second Lien Notes or any agreements related to any Permitted Refinancing
Indebtedness in respect of any such Indebtedness that does not expand the scope of any such encumbrance or restriction;
(C) any
restriction on a Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Equity Interests or assets of a Subsidiary pending the closing of such sale or disposition;
(D) customary
provisions in joint venture agreements and other similar agreements applicable to joint ventures entered into in the ordinary course of business;
(E) any
restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent that such restrictions apply only to the property or assets securing such Indebtedness;
(F) any
restrictions imposed by any agreement relating to Indebtedness incurred pursuant to Section 6.01(r), to the extent such restrictions are not more restrictive, taken as a whole, than the restrictions contained in the Existing Second Lien Note
Documents;
(G) customary
provisions contained in leases or licenses of intellectual property and other similar agreements entered into in the ordinary course of business;
(H) customary
provisions restricting subletting or assignment of any lease governing a leasehold interest;
(I) customary
provisions restricting assignment of any agreement entered into in the ordinary course of business;
(J) customary
restrictions and conditions contained in any agreement relating to the sale, transfer, lease or other disposition of any asset permitted under Section 6.05 pending the consummation of such sale, transfer, lease or other disposition;
(K) customary
restrictions and conditions contained in the document relating to any Lien, so long as (1) such Lien is a Permitted Lien and such restrictions or conditions relate only to the specific asset subject to such Lien, and (2) such restrictions and
conditions are not created for the purpose of avoiding the restrictions imposed by this Section 6.09;
(L) customary
net worth provisions contained in Real Property leases entered into by Subsidiaries of the Borrower, so long as the Borrower has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the
Borrower and its Subsidiaries to meet their ongoing obligations;
(M) any
agreement in effect at the time such subsidiary becomes a Subsidiary, so long as such agreement was not entered into in contemplation of such person becoming a Subsidiary other than Subsidiaries of such new Subsidiary;
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(N) restrictions in agreements representing Indebtedness permitted under Section 6.01 of a Subsidiary of the Borrower that is not a
Subsidiary Loan Party;
(O) customary
restrictions on leases, subleases, licenses or Equity Interests or asset sale agreements otherwise permitted hereby as long as such restrictions relate to the Equity Interests and assets subject thereto;
(P) restrictions
on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business;
(Q) restrictions
contained in any Permitted Receivables Document with respect to any Special Purpose Receivables Subsidiary; or
(R) any
encumbrances or restrictions of the type referred to in Sections 6.09(c)(i) and 6.09(c)(ii) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (A) through (Q) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good
faith judgment of the Borrower, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.
SECTION 6.10. Fiscal
Year; Accounting. Permit its fiscal year to end on any date other than the Saturday nearest September 30 in respect of any other year, without prior notice to the Administrative Agent given concurrently with any required notice to the SEC.
SECTION 6.11. Qualified
CFC Holding Companies. Permit any Qualified CFC Holding Company to (a) create, incur or assume any Indebtedness or other liability, or create, incur, assume or suffer to exist any Lien on, or sell, transfer or otherwise dispose of, other
than in a transaction permitted under Section 6.05, any of the Equity Interests of a Foreign Subsidiary held by such Qualified CFC Holding Company, or any other assets, or (b) engage in any business or activity or acquire or hold any assets other
than the Equity Interests of one or more Foreign Subsidiaries of the Borrower and/or one or more other Qualified CFC Holding Companies and the receipt and distribution of dividends and distributions in respect thereof.
SECTION 6.12. Rating.
Exercise commercially reasonable efforts to maintain corporate ratings from each of Moody’s and S&P for the Loans.
ARTICLE VIA
Holdings Covenants
Holdings Covenants
Holdings covenants and agrees with each Lender that, so long as this Agreement shall remain in effect (other than in respect of contingent indemnification obligations for which no claim has been made)
and until the Commitments have been terminated and the Obligations (including principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document) have been paid in full, unless the Required Lenders
shall otherwise consent in writing, (a) Holdings will not create, incur, assume or permit to exist any Lien (other than Liens of a type described in Section 6.02(d), (e) or (k)) on any of the Equity Interests issued by the Borrower other than the
Liens created under the Loan Documents, (b) Holdings shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence; provided, that so long as no Default or Event of
Default exists or would result therefrom, Holdings may merge with any other person, and (c) Holdings shall at all times own directly 100% of the Equity Interests of the Borrower and shall not sell, transfer or otherwise dispose of the Equity
Interests in the Borrower.
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ARTICLE VII
Events of Default
Events of Default
SECTION 7.01. Events
of Default. In case of the happening of any of the following events (each, an “Event of Default”):
(a) any
representation or warranty made or deemed made by Holdings, the Borrower or any other Loan Party herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove to have been false or misleading
in any material respect when so made or deemed made;
(b) default
shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default
shall be made in the payment of any interest on any Loan or in the payment of any Fee or any other amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of five Business Days;
(d) default
shall be made in the due observance or performance by Holdings, the Borrower or any of the Subsidiaries of any covenant, condition or agreement contained in Section 5.01(a), 5.05(a) or 5.08 or in Article VI or VIA;
(e) default
shall be made in the due observance or performance by Holdings, the Borrower or any of the Subsidiaries of any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraphs (b), (c) and (d) above) and
such default shall continue unremedied for a period of 30 days (or 60 days if such default results solely from a Foreign Subsidiary’s failure to duly observe or perform any such covenant, condition or agreement) after notice thereof from the
Administrative Agent to the Borrower;
(f) (i) any
event or condition occurs that (A) results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness
or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii) Holdings, the Borrower or any of
the Subsidiaries shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that this clause (f) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;
(g) there shall
have occurred a Change in Control;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of Holdings, the Borrower or any of the Subsidiaries, or of a substantial part of the property
or assets of Holdings, the Borrower or any Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator, examiner, conservator or similar official for Holdings, the Borrower or any of the Subsidiaries or for a substantial part of the property or assets of Holdings, the Borrower or any of
the Subsidiaries or (iii) the winding-up or liquidation of Holdings, the Borrower or any Subsidiary (except, in the case of any Subsidiary, in a transaction permitted by Section 6.05); and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
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(i) Holdings,
the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (h) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, the Borrower or any of the Subsidiaries or for a substantial part of the property or assets of Holdings, the Borrower or any Subsidiary,
(iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) become unable or admit in writing its inability or fail generally to
pay its debts as they become due;
(j) the failure
by Holdings, the Borrower or any Subsidiary to pay one or more final judgments aggregating in excess of $35 million (to the extent not covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of 45
consecutive days;
(k) (i) a
trustee shall be appointed by a United States district court to administer any Plan, (ii) an ERISA Event or ERISA Events shall have occurred with respect to any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings (including
giving notice of intent thereof) to terminate any Plan or Plans, (iv) Holdings, the Borrower or any Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA, or (v) Holdings, the Borrower or any Subsidiary shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the IRS Code)
involving any Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect;
(l) (i) any Loan
Document shall for any reason be asserted in writing by Holdings, the Borrower or any Subsidiary not to be a legal, valid and binding obligation of any party thereto, (ii) any security interest purported to be created by any Security Document and
to extend to assets that are not immaterial to Holdings, the Borrower and the Subsidiaries on a consolidated basis shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party not to be, a valid and perfected
security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties
covered thereby, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries or the application
thereof, or from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or to file Uniform Commercial Code continuation statements or
take the actions described on Schedule 3.04 and except to the extent that such loss is covered by a Lender’s title insurance policy and the Administrative Agent shall be reasonably satisfied with the credit of such insurer, or
(iii) the Guarantees pursuant to the Security Documents by Holdings, the Borrower or the Subsidiary Loan Parties of any of the Obligations shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be
asserted in writing by Holdings or the Borrower or any Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations;
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(m) (i) the
Obligations shall fail to constitute “Senior Debt” (or the equivalent thereof) and “Designated Senior Debt” (or the equivalent thereof) under the documentation governing any Indebtedness incurred pursuant to Section 6.01(r) constituting
subordinated Indebtedness, or (ii) the subordination provisions thereunder shall be invalidated or otherwise cease, or shall be asserted in writing by Holdings, the Borrower or any Subsidiary Loan Party to be invalid or to cease to be legal,
valid and binding obligations of the parties thereto, enforceable in accordance with their terms; or
(n) there shall
occur and be continuing an “Event of Default” under and as defined in the Revolving Credit Agreement;
then, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) above), and at any time thereafter during the continuance of such event, the Administrative Agent, at the
request of the Required Lenders, shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate forthwith the Commitments, and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to
the contrary notwithstanding; and in any event with respect to the Borrower described in paragraph (h) or (i) above, the Commitments shall automatically terminate, and the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due, without presentment, demand, protest or any other notice of any kind, all of which
are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.
SECTION 7.02. Exclusion
of Immaterial Subsidiaries. Solely for the purposes of determining whether an Event of Default has occurred under clause (h), (i) or (l) of Section 7.01, any reference in any such clause to any Subsidiary shall be deemed not to include any
Immaterial Subsidiary affected by any event or circumstance referred to in any such clause.
ARTICLE VIII
The Agents
The Agents
SECTION 8.01. Appointment.
(a) Each Lender (in such capacity and on behalf of itself and its Affiliates as potential counterparties to Swap Agreements) hereby irrevocably designates and appoints the (A) Administrative Agent as the agent
of such Lender under this Agreement and the other Loan Documents, including as a Collateral Agent for such Lender and the other Secured Parties (including the Revolving Facility Secured
Parties) under the Security Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental
thereto and (B) the Revolving Facility Collateral Agent as collateral agent for such lender for purposes of the Security Documents. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of
the Lenders hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s behalf. Notwithstanding any provision to the contrary elsewhere
in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.
(b) In
furtherance of the foregoing, each Lender (in such capacity and on behalf of itself and its Affiliates as potential counterparties to Swap Agreements) hereby appoints and authorizes the Collateral Agent to act as the agent of such Lender for
purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto and to enter into and
take such action on its behalf under the provisions of the Second Priority Intercreditor Agreement, the Senior
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(c) Fixed Collateral Intercreditor Agreement
and the Senior Lender Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of the Second Priority Intercreditor Agreement, the Senior Fixed Collateral
Intercreditor Agreement and the Senior Lender Intercreditor Agreement, together with such other powers as are reasonably incidental thereto. In this connection, the Collateral Agent (and any Subagents appointed by the Collateral Agent pursuant
to Section 8.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights or remedies thereunder at the direction of the Collateral Agent) shall be
entitled to the benefits of this Article VIII (including, without limitation, Section 8.07) as though the Collateral Agent (and any such Subagents) were an “Agent” under the Loan Documents, as if set forth in full herein with respect thereto.
(d) Each
Lender (in such capacity and on behalf of itself and its Affiliates as potential counterparties to Swap Agreements) irrevocably authorizes each of the Administrative Agent and the Collateral Agent, at its option and in its discretion, (i) to
release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (A) upon termination of the Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (B) that is
sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (C) if approved, authorized or ratified in writing in accordance with Section 9.08 hereof, (ii) to release any Subsidiary Loan
Party from its obligations under the Loan Documents if such person ceases to be a Subsidiary as a result of a transaction permitted hereunder; and (iii) to subordinate any Lien on any property granted to or held by the Collateral Agent under any
Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(i) and (j). Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative
Agent’s and the Collateral Agent’s authority to release its interest in particular types or items of property, or to release any Subsidiary Loan Party from its obligations under the Loan Documents.
(e) In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, (i) the Administrative Agent (irrespective of whether the
principal of any Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise (A) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of any or all of the Obligations that are owing and unpaid and to file such other documents
as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent and any Subagents allowed in such judicial proceeding, and (B) to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same, and (ii) any custodian, receiver, assignee, trustee, liquidator, examiner, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under the Loan Documents. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
SECTION 8.02. Delegation
of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent may also from time to time, when the Administrative
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Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “Subagent”) with respect to all or any part
of the Collateral; provided, that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Administrative Agent. Should any
instrument in writing from the Borrower or any other Loan Party be required by any Subagent so appointed by the Administrative Agent to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the
Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent. If any Subagent, or successor thereto, shall die, become incapable of acting,
resign or be removed, all rights, powers, privileges and duties of such Subagent, to the extent permitted by law, shall automatically vest in and be exercised by the Administrative Agent until the appointment of a new Subagent. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent, attorney-in-fact or Subagent that it selects in accordance with the foregoing provisions of this Section 8.02 in the absence of the Administrative Agent’s gross
negligence or willful misconduct.
SECTION 8.03. Exculpatory
Provisions. Neither any Agent or its Affiliates nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such
person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such
person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or
any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan
Party. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, and (b) the Administrative Agent shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the person serving as the Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default is given to the Administrative
Agent by the Borrower or a Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or
document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 8.04. Reliance
by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including
any electronic message, Internet or intranet website posting or other distribution) or conversation believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper person. The Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a
Loan hereunder, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is
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satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel
(including counsel to Holdings or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all or
other Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all
or other Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
SECTION 8.05. Notice
of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received written notice from a Lender, Holdings or the Borrower
referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all or other Lenders); provided, that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
SECTION 8.06. Non-Reliance
on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it
and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Loan Parties and their affiliates and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently
and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 8.07. Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by Holdings or the Borrower and without limiting the obligation of Holdings or the Borrower to do so), in the amount of its pro rata share (based on its outstanding Loans), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at
any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents (including, without
limitation, the Second Priority Intercreditor
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Agreement, the Senior Fixed Collateral Intercreditor Agreement and the Senior Lender Intercreditor Agreement) or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The failure
of any Lender to reimburse any Agent, promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such
Agent for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse such Agent for such other Lender’s ratable share of such amount. The agreements in this Section shall survive the
payment of the Loans and all other amounts payable hereunder.
SECTION 8.08. Agent in
Its Individual Capacity. Each Agent and its affiliates may make loans to, accept deposits from, and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Loans made or
renewed by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” shall include each
Agent in its individual capacity.
SECTION 8.09. Successor
Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 10 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective, and the retiring Administrative Agent shall, on behalf of the Lenders, appoint a successor agent which
shall (unless an Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 8.09 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other
Loan Documents.
SECTION 8.10. Agents and Arrangers. Neither the Syndication Agent, the Documentation Agent nor any
of the Joint Lead Arrangers shall have any duties or responsibilities hereunder in its capacity as such. In connection with the Amendment, none of the Amendment Arrangers shall have any duties or responsibilities hereunder or thereunder in its
capacity as such. In connection with the RPC Incremental Amendment, none of the RPC Incremental Amendment Arrangers shall
have any duties or responsibilities hereunder or thereunder in its capacity as such.
ARTICLE IX
Miscellaneous
Miscellaneous
SECTION 9.01. Notices;
Communications.
(a) Except
in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 9.01(b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
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(i) if to
any Loan Party or to the Administrative Agent, to the address, telecopier number, electronic mail address or telephone number specified for such person on Schedule 9.01; and
(ii) if to
any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
(c) Notices
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in Section 9.01(b)
above shall be effective as provided in such Section 9.01(b).
(d) Any
party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
(e) Documents
required to be delivered pursuant to Section 5.04 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically (including as set forth in Section 9.17) and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 9.01, or (ii) on which such
documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided, that (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender, and (B) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent
by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the certificates required by
Section 5.04(c) to the Administrative Agent. Except for such certificates required by Section 5.04(c), the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
SECTION 9.02. Survival
of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties herein, in the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the making by the Lenders of the Loans and the execution and delivery of the Loan Documents, regardless of any investigation made
by such persons or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any Fee or any other amount payable under this Agreement or
any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as
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the Commitments have not been terminated. Without prejudice to the survival of any other agreements contained herein, indemnification and reimbursement obligations contained herein
(including pursuant to Sections 2.15, 2.17 and 9.05) shall survive the payment in full of the principal and interest hereunder, and the termination of the Commitments or this Agreement.
SECTION 9.03. Binding
Effect. This Agreement shall become effective when it shall have been executed by Holdings, the Borrower and the Administrative Agent and when the Administrative Agent shall have been notified by each Lender (or otherwise received evidence
satisfactory to the Administrative Agent) that such Lender has executed it and thereafter shall be binding upon and inure to the benefit of Holdings, the Borrower, the Administrative Agent and each Lender and their respective permitted successors
and assigns.
SECTION 9.04. Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section 9.04. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants (to the extent provided in paragraph (c) of this Section 9.04), and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement or the other Loan Documents.
(b) (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion
of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the
Borrower; provided, that no consent of the Borrower shall be required for an assignment to a Lender, an affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default under Sections 7.01(b), (c), (h) or (i)
has occurred and is continuing, any other person; and
(B) the
Administrative Agent; provided, that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans under any
Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall
not be less than, with respect to Loans denominated in Dollars, $1.0 million, and
with respect to Loans denominated in Euros, €1.0 million, unless each of the Borrower and the Administrative Agent otherwise consent; provided, that (1) no such consent of the Borrower shall be required if an
Event of Default under Sections 7.01(b), (c), (h) or (i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds (with simultaneous assignments to or by two or more
Related Funds shall be treated as one assignment), if any;
(B) the parties
to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent
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(or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the
Administrative Agent);
(C) the
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and all applicable tax forms; and
(D) the Assignee
shall not be the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
For the purposes of this Section 9.04, “Approved Fund” means any person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. Notwithstanding the
foregoing, no Lender shall be permitted to assign or transfer any portion of its rights and obligations under this Agreement to an Ineligible Institution without the prior written consent of the Borrower.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) below, from and after the effective date specified in each Assignment and Acceptance the Assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall
be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section 9.04.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee’s completed Administrative Questionnaire (unless the Assignee
shall already be a Lender hereunder), all applicable tax forms, the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment, whether or not evidenced by a promissory note, shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph (b)(v).
(c) (i) Any Lender may,
without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it); provided, that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to
approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided, that (x) such agreement may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to Section 9.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or (vi) of the first proviso to Section 9.08(b) and (2) directly
affects such Participant and (y) no other agreement with respect to amendment, modification or waiver may exist between such Lender and such Participant. Subject to paragraph (c)(ii) of this Section 9.04, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 9.04. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided such Participant shall be subject to Section 2.18(c) as though it were a Lender.
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(ii) A Participant shall not be entitled to receive any greater payment under Section 2.15, 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 2.17 to the extent such
Participant fails to comply with Section 2.17(e) and (f) as though it were a Lender.
(d) Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and
this Section 9.04 shall not apply to any such pledge or assignment of a security interest; provided, that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The
Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (d) above.
(f) Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent. Each of Holdings, the Borrower, each Lender and the
Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender
hereby agrees to indemnify, save and hold harmless each other party hereto and each Loan Party for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of
forbearance.
(g) If the
Borrower wishes to replace the Loans or Commitments under any Facility with ones having different terms, it shall have the option, with the consent of the Administrative Agent and subject to at least three Business Days’ advance notice to the
Lenders under such Facility, instead of prepaying the Loans or reducing or terminating the Commitments to be replaced, to (i) require the Lenders under such Facility to assign such Loans or Commitments to the Administrative Agent or its designees
and (ii) amend the terms thereof in accordance with Section 9.08 (with such replacement, if applicable, being deemed to have been made pursuant to Section 9.08(d)). Pursuant to any such assignment, all Loans and Commitments to be replaced shall
be purchased at par (allocated among the Lenders under such Facility in the same manner as would be required if such Loans were being optionally prepaid or such Commitments were being optionally reduced or terminated by the Borrower), accompanied
by payment of any accrued interest and fees thereon and any other amounts owing pursuant to Section 9.05(b). By receiving such purchase price, the Lenders under such Facility shall automatically be deemed to have assigned the Loans or
Commitments under such Facility pursuant to
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the terms of the form of Assignment and Acceptance attached hereto as Exhibit A, and accordingly no other action by such Lenders shall be required in connection therewith. The
provisions of this paragraph (g) are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.
(h) Notwithstanding
the foregoing, no assignment may be made to an Ineligible Institution without the prior written consent of the Borrower.
SECTION 9.05. Expenses;
Indemnity.
(a) The
Borrower agrees to pay (i) all reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent in
connection with the syndication of the Commitments or the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable
prior approval of the Borrower and the reasonable fees, disbursements and charges for no more than one counsel in each jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP, counsel for the
Administrative Agent and the Joint Lead Arrangers, and, if necessary, the reasonable fees, charges and disbursements of one local counsel per jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative
Agent or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made hereunder, including the fees, charges and disbursements of
counsel for the Administrative Agent (including any special and local counsel).
(b) The
Borrower agrees to indemnify the Administrative Agent, the Agents, the Joint Lead Arrangers, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, trustees and advisors
(each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and
disbursements (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document
(including, without limitation, the Second Priority Intercreditor Agreement, the Senior Fixed Collateral Intercreditor Agreement and the Senior Lender Intercreditor Agreement) or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) the use of the proceeds of the Loans, or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their
subsidiaries or Affiliates; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable
judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, the Joint Lead Arrangers or any Lender shall
be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower
agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not
more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a
result of (A) any claim related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any
101
actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Real Property; provided, that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee or any of its Related Parties. None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to the Funds, Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or
any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the Administrative Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect
to any reimbursement, indemnification or other amount requested.
(c) Except
as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(d) To the
fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(e) The
agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the
termination of this Agreement.
SECTION 9.06. Right of
Set-off. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of Holdings, the Borrower or any Subsidiary against any of and all the obligations of
Holdings or the Borrower now or hereafter existing under this Agreement or any other Loan Document held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document and
although the obligations may be unmatured. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender may have.
SECTION 9.07. Applicable
Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers;
Amendment.
(a) No
failure or delay of the Administrative Agent or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce
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such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, the
Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on Holdings, the Borrower or any other Loan Party in any case shall entitle such person to any other or further notice or demand in similar or other circumstances.
(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered
into by Holdings, the Borrower and the Required Lenders, and (z) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent (or, in the case of any
Security Documents, the Collateral Agent if so provided therein) and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease
or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan without the prior written consent of each Lender directly affected thereby,
(ii) increase
or extend the Commitment of any Lender or decrease the Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of
Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend
or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any Fees is due, without the prior written consent of each Lender adversely affected
thereby,
(iv) amend
the provisions of Section 5.02 of the Collateral Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender
adversely affected thereby,
(v) amend or
modify the provisions of this Section 9.08 or the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date),
(vi) release
all or substantially all the Collateral or release any of Holdings, the Borrower or all or substantially all of the Subsidiary Loan Parties from their respective Guarantees under the Collateral Agreement, unless, in the case of a Subsidiary Loan
Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender;
(vii) effect
any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the
consent of the majority-in-interest of the Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in
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whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed);
provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the
Administrative Agent acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section
9.08 shall bind any assignee of such Lender.
(c) Without
the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or
enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or
as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrower (a) to add one or more additional credit facilities to this Agreement and
to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued
interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) Notwithstanding
the foregoing, the technical and conforming modifications to the Loan Documents may be made with the consent of the Borrower and the Administrative Agent to the extent necessary to integrate any Incremental Term Loan Commitments on substantially
the same basis as the Loans and/or as otherwise contemplated by Section 2.21.
SECTION 9.09. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “Charges”),
as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender, shall exceed the maximum lawful rate (the “Maximum Rate”) that may
be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges payable to such Lender, shall be limited to the Maximum Rate; provided,
that such excess amount shall be paid to such Lender on subsequent payment dates to the extent not exceeding the legal limitation.
SECTION 9.10. Entire
Agreement. This Agreement, the other Loan Documents and the agreements regarding certain Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or
representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Fee Letter shall survive the execution and delivery
of this Agreement and remain in full force and effect. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
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PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability.
In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 9.03. Delivery of
an executed counterpart to this Agreement by facsimile transmission (or other electronic transmission pursuant to procedures approved by the Administrative Agent) shall be as effective as delivery of a manually signed original.
SECTION 9.14. Headings.
Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction;
Consent to Service of Process.
(a) Each of
the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any
appellate court from any thereof (collectively, “New York Courts”), in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction, except that each of the Loan Parties agrees that (a) it will not
bring any such action or proceeding in any court other than New York Courts (it being acknowledged and agreed by the parties hereto that any other forum would be inconvenient and inappropriate in view of the fact that more of the Lenders who
would be affected by any such action or proceeding have contacts with the State of New York than any other jurisdiction), and (b) in any such action or proceeding brought against any Loan Party in any other court, it will not assert any
cross-claim, counterclaim or setoff, or seek any other affirmative relief, except to the extent that the failure to assert the same will preclude such Loan Party from asserting or seeking the same in the New York Courts.
(b) Each of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement or the other Loan Documents in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 9.16. Confidentiality.
Each of the Lenders and each of the Agents agrees that it shall maintain in confidence any information relating to Holdings, the Borrower and any Subsidiary furnished to it by or on behalf of Holdings, the
Borrower or any Subsidiary (other than information that (a) has become generally available to the public other than as a result of a disclosure by such party,
105
(b) has been independently developed by such Lender or such Agent without violating this Section 9.16 or (c) was available to such Lender or such Agent from a third party having, to such person’s knowledge, no
obligations of confidentiality to Holdings, the Borrower or any other Loan Party) and shall not reveal the same other than to its directors, trustees, officers, employees and advisors with a need to know or to any person that approves or
administers the Loans on behalf of such Lender (so long as each such person shall have been instructed to keep the same confidential in accordance with this Section 9.16), except: (A) to the extent necessary to comply with law or any legal process
or the requirements of any Governmental Authority, the National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded, (B) as
part of normal reporting or review procedures to, or examinations by, Governmental Authorities or self-regulatory authorities, including the National Association of Insurance Commissioners or the National Association of Securities Dealers, Inc.,
(C) to its parent companies, Affiliates or auditors (so long as each such person shall have been instructed to keep the same confidential in accordance with this Section 9.16), (D) in order to enforce its rights under any Loan Document in a legal
proceeding, (E) to any pledge under Section 9.04(d) or any other prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such person shall have been instructed to keep the same confidential in
accordance with this Section 9.16) and (F) to any direct or indirect contractual counterparty in Swap Agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this Section 9.16).
SECTION 9.17. Platform;
Borrower Materials. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”), and (b) certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers and the Lenders to treat such Borrower Materials as
either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws, (iii) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (iv) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
SECTION 9.18. Release
of Liens and Guarantees. In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of any of the Equity Interests or assets of any Subsidiary Loan Party to a person that is not
(and is not required to become) a Loan Party in a transaction not prohibited by Section 6.05, the Collateral Agent shall promptly (and the Lenders hereby authorize the Collateral Agent to) take such action and execute any such documents as may be
reasonably requested by Holdings or the Borrower and at the Borrower’s expense to release any Liens created by any Loan Document in respect of such Equity Interests or assets, and, in the case of a disposition of the Equity Interests of any
Subsidiary Loan Party in a transaction permitted by Section 6.05 and as a result of which such Subsidiary Loan Party would cease to be a Subsidiary, terminate such Subsidiary Loan Party’s obligations under its Guarantee. In addition, the
Collateral Agent agrees to take such actions as are reasonably requested by Holdings or the Borrower and at the Borrower’s expense to terminate the Liens and security interests created by the Loan Documents when all the Obligations (other than
contingent indemnification Obligations) are paid in full and all Commitments are terminated. Any representation, warranty or covenant contained in any Loan Document relating to any such Equity Interests, asset or subsidiary of Holdings shall no
longer be deemed to be made once such Equity Interests or asset is so conveyed, sold, leased, assigned, transferred or disposed of.
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SECTION 9.19. PATRIOT Act Notice.
Each Lender that is subject to the PATRIOT Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party
and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the PATRIOT Act.
SECTION 9.20. Intercreditor
Agreements and Collateral Agreement. Each Lender hereunder (a) consents to the priority and/or subordination of Liens provided for in the Second Priority Intercreditor Agreement, (b) consents to the priority and/or subordination of Liens
provided for in the Senior Lender Intercreditor Agreement, (c) consents to the priority and/or subordination of Liens provided for in the Senior Fixed Collateral Intercreditor Agreement, (d) agrees that it will be bound by and will take no
actions contrary to the provisions of the Second Priority Intercreditor Agreement, the Senior Lender Intercreditor Agreement or the Senior Fixed Collateral Intercreditor Agreement, (e) authorizes and instructs the Administrative Agent and the
Collateral Agent to enter into the Senior Lender Intercreditor Agreement on behalf of itself and such Lender, (f) authorizes and instructs the Administrative Agent and the Collateral Agent to enter into the Senior Fixed Collateral Intercreditor
Agreement and the Second Priority Intercreditor Agreement and (g) consents to entering into the First Lien Guarantee and Collateral Agreement in the form of Exhibit E herein. The foregoing provisions are intended as an inducement
to the Lenders to extend credit and such Lenders are intended third party beneficiaries of such provisions and the provisions of the Second Priority Intercreditor Agreement, the Senior Lender Intercreditor Agreement and the Senior Fixed
Collateral Intercreditor Agreement. The Collateral Agent is hereby authorized without the consent of any Lender to enter into such amendments to the Collateral Agreement and Intercreditor Agreements as may be requested by the Borrower or the
Revolving Facility Collateral Agent in connection with the addition of any separate foreign tranche of loans to the Revolving Credit Agreement secured by Liens on the assets of Foreign Subsidiaries that will not secure the Obligations.
SECTION 9.21. Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and
acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects
of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that
such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
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Exhibit B
SECOND AMENDED AND RESTATED
FIRST LIEN GUARANTEE AND COLLATERAL AGREEMENT
dated and effective as of
April 3, 2007
among
BERRY PLASTICS GROUP, INC.,
BERRY PLASTICS HOLDING CORP.,
each Subsidiary of the Company
FIRST LIEN GUARANTEE AND COLLATERAL AGREEMENT
dated and effective as of
April 3, 2007
among
BERRY PLASTICS GROUP, INC.,
BERRY PLASTICS HOLDING CORP.,
each Subsidiary of the Company
identified herein,
and
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Term Collateral Agent,
and
BANK OF AMERICA, N.A.,
as ABL Collateral Agent
and
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Term Collateral Agent,
and
BANK OF AMERICA, N.A.,
as ABL Collateral Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
DEFINITIONS
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Section 1.01.
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Credit Agreements
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2
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Section 1.02.
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Other Defined Terms
|
3
|
ARTICLE II
GUARANTEE
GUARANTEE
|
Section 2.01.
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Guarantee
|
7
|
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Section 2.02.
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Guarantee of Payment
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7
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Section 2.03.
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No Limitations, Etc.
|
|
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Section 2.04.
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Reinstatement
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9
|
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Section 2.05.
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Agreement To Pay; Contribution; Subrogation
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9
|
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Section 2.06.
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Information
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9
|
|
Section 2.07.
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Maximum Liability
|
|
|
Section 2.08.
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Payment Free and Clear of Taxes
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10
|
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Section 2.09.
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No Foreign Guarantee of U.S. Obligations
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10
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ARTICLE III
PLEDGE OF SECURITIES
PLEDGE OF SECURITIES
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Section 3.01.
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Pledge
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10
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Section 3.02.
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Delivery of the Pledged Collateral
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11
|
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Section 3.03.
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Representations, Warranties and Covenants
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12
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Section 3.04.
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Registration in Nominee Name; Denominations
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13
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Section 3.05.
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Voting Rights; Dividends and Interest, Etc.
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|
ARTICLE IV
SECURITY INTERESTS IN OTHER PERSONAL PROPERTY
SECURITY INTERESTS IN OTHER PERSONAL PROPERTY
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Section 4.01.
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Security Interest
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15
|
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Section 4.02.
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Representations and Warranties
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17
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Section 4.03.
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Covenants
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|
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Section 4.04.
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Other Actions
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|
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Section 4.05.
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Covenants Regarding Patent, Trademark and Copyright Collateral
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23
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ARTICLE V
REMEDIES; APPLICATION OF PROCEEDS
REMEDIES; APPLICATION OF PROCEEDS
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Section 5.01.
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Remedies Upon Default
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24
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Section 5.02.
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Apportionment, Application, and Reversal of Payments
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25
|
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Section 5.03.
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Securities Act, Etc.
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|
INDEMNITY, SUBROGATION AND SUBORDINATION
|
Section 6.01.
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Indemnity
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28
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Section 6.02.
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Contribution and Subrogation
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28
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Section 6.03.
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Subordination; Subrogation
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|
ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
|
Section 7.01.
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Notices
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30
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Section 7.02.
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Security Interest Absolute
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30
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Section 7.03.
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Limitation By Law
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|
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Section 7.04.
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Binding Effect; Several Agreement
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|
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Section 7.05.
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Successors and Assigns
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Section 7.06.
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Administrative Agents’ and Collateral Agents’ Fees and Expenses; Indemnification
|
|
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Section 7.07.
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Collateral Agents Appointed Attorneys-in-Fact
|
|
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Section 7.08.
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GOVERNING LAW
|
|
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Section 7.09.
|
Waivers; Amendment
|
|
|
Section 7.10.
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WAIVER OF JURY TRIAL
|
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Section 7.11.
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Severability
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Section 7.12.
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Counterparts
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Section 7.13.
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Headings
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Section 7.14.
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Jurisdiction; Consent to Service of Process
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Section 7.15.
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Termination or Release
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Section 7.16.
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Additional Subsidiaries
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Section 7.17.
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Right of Set-off
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Section 7.18.
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Intercreditor Agreements
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Section 7.19.
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Limit of Pledge
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Section 7.20.
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Priority
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Schedules
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Schedule I Subsidiary Parties
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Schedule II Pledged Stock; Debt Securities
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Schedule III Intellectual Property
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Exhibits
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Exhibit A Form of Supplement to the Guarantee and Collateral Agreement
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Exhibit B Form of Perfection Certificate
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SECOND AMENDED AND RESTATED FIRST LIEN GUARANTEE AND COLLATERAL AGREEMENT, dated and effective as of April , 2007 (this “Agreement”), among
BERRY PLASTICS GROUP, INC., a Delaware corporation (“Berry Holdings”), which immediately prior to Closing Date was merged with and into Covalence Specialty Materials Holding Corp. (“Covalence Holdings”), with Covalence Holdings
surviving such merger and being renamed Berry Plastics Group, Inc. (the surviving entity, “Holdings”), COVALENCE SPECIALTY MATERIALS CORP., a Delaware corporation (“Covalence”), which on the Closing Date shall be merged with and into
Berry Plastics Holding Corporation (“Berry”), with Berry surviving such merger (the “Company”), each Subsidiary of the Company identified herein as a party or
that becomes a party hereto pursuant to Section 7.16 (each, a “Subsidiary Party”), BANK OF AMERICA, N.A., as collateral agent (in such capacity, the “ABL Collateral Agent”) for the Revolving Facility Secured Parties (as
defined below), and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as collateral agent (in such capacity, the “Term Collateral Agent,” and together with the ABL Collateral Agent, the “Collateral Agents”) for the Term Loan Secured Parties (as
defined below).
WHEREAS, this Agreement has been titled the “Second Amended and Restated First Lien Guarantee and Collateral Agreement” for convenience of reference
only and is, and is intended to be, a new first lien guarantee and collateral agreement.
WHEREAS, Covalence Holdings, Covalence, the lenders and agents named therein, and Bank of America,
N.A., as administrative agent for such lenders, are parties to that certain Amended and Restated Credit Agreement dated as of May 18, 2006 (the “Existing Term Loan Agreement”);
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WHEREAS, the lenders party to each Credit Agreement (collectively, together with any other person that becomes a lender under either of the Credit
Agreements and their respective successors and assigns, the “Lenders”) have agreed to extend credit to the Company and/or the Subsidiary BorrowersCanadian Borrower (collectively, the “Borrowers”), in each case subject to the terms and conditions set
forth in the respective Credit Agreements;
WHEREAS, Holdings and the Subsidiary Parties are affiliates of the Borrowers, will derive substantial benefits from the extension of credit to the
Borrowers pursuant to the Credit Agreements, and are willing to execute and deliver this Agreement in order to induce the Lenders to extend credit to the Borrowers in accordance with the terms of the Credit Agreements;
NOW, THEREFORE, Holdings, the Company, each Subsidiary Party and the Collateral Agents hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Credit Agreements.
(a) Unless otherwise stated herein:
(i) Capitalized terms used in this Agreement and not otherwise defined herein have the respective meanings assigned thereto in both the Term Credit Agreement and the Revolving Credit Agreement (or, if defined in
only one Credit Agreement, as therein defined).
(ii) Unless otherwise defined herein, any capitalized term that is defined in both the Term Credit Agreement and the Revolving Credit Agreement
and is preceded herein by the word “Term” shall mean such term as defined in the Term Credit Agreement, and any such capitalized term that is preceded herein by the word “Revolving” shall mean such term as defined in the Revolving
Credit Agreement.
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(iii) ll terms defined in the New York UCC (as defined below) and not defined in this Agreement have the meanings specified therein.
(iv) The term “instrument” shall have the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in Section 1.02 of the Term Credit Agreement also apply to this Agreement.
Section 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“Account Debtor” means any person who is or who may become obligated to any Pledgor under, with respect to or on account of an Account,
Chattel Paper, General Intangibles, Instruments or Investment Property.
“Administrative Agents” means the Revolving Administrative Agent and the Term
Administrative Agent.
“Amendment Effective Date” means the date of effectiveness of the U.S. Collateral
Agreement Amendment (as defined in the Revolving Credit Agreement).
“Article 9 Collateral” has the meaning assigned to such term in Section 4.01.
“Bank Products” has the meaning assigned to that term in the definition of “Obligations” herein.
“Borrowers” has the meaning assigned to such term in the recitals hereto.
“Canadian Borrower” has the meaning assigned to such term in the recitals hereto.
“Canadian Unfunded Advances/Participations” shall mean any Unfunded
Advances/Participations of Canadian Revolving Lenders.
“Collateral” means Article 9 Collateral and Pledged Collateral.
“Control Agreement” means a deposit account control agreement, a securities account control agreement or a commodity account control
agreement, as applicable, enabling the Collateral Agent to obtain “control” (within the meaning of the New York UCC) of any such accounts, in form and substance reasonably satisfactory to the Collateral AgentAgents.
“Copyright License” means any written agreement, now or hereafter in effect, granting any right to any Pledgor under any Copyright now or
hereafter owned by any third party, and all rights of any Pledgor under any such agreement (including, without limitation, any such rights that such Pledgor has the right to license).
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"Copyrights” means all of the following now owned or
hereafter acquired by any Pledgor: (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise; and (b) all registrations and applications for
registration of any such Copyright in the United States or any other country, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office and the right to obtain all renewals
thereof, including those listed on Schedule III.
“Credit Agreements” has the meaning assigned to such term in the recitals hereto.
“Federal Securities Laws” has the meaning assigned to such term in Section 5.04.
“General Intangibles” means all “General Intangibles” as defined in the New York UCC, including all choses
in action and causes of action and all other intangible personal property of any Pledgor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Pledgor, including corporate or other business records,
indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Swap Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any guarantee,
claim, security interest or other security held by or granted to any Pledgor to secure payment by an Account Debtor of any of the Accounts.
“Guarantors” means Holdings and the Subsidiary Parties and, for purposes of the Revolving Credit Agreement, the Revolving Loan Documents and
the Revolving Facility Obligations (as defined in the Senior Lender Intercreditor Agreement), the Company.
“Hedging Obligations” has the meaning assigned to that term in the definition of
“Obligations” herein.
“Intellectual Property” means all intellectual property of every kind and nature now owned or hereafter acquired by any Pledgor, including,
inventions, designs, Patents, Copyrights, Trademarks, Patent Licenses, Copyright Licenses, Trademark Licenses, trade secrets, domain names, confidential or proprietary technical and business information, know-how, show-how or other data or
information and all related documentation.
“Intellectual Property Security Agreement” means a security agreement in the form hereof or a short form hereof, in each case, which form
shall be reasonably acceptable to the Administrative Agents.
“Intercreditor Agreements” means the OriginalSecond Priority Intercreditor Agreement, the Senior Fixed Collateral Intercreditor Agreement and the Senior Lender Intercreditor Agreement.
“IP Agreements” means all material Copyright Licenses, Patent Licenses, Trademark Licenses, and all other agreements, permits, consents,
orders and franchises relating to the license, development, use or disclosure of any material Intellectual Property to which a Pledgor, now or hereafter, is a party or a beneficiary, including, without limitation, the agreements set forth on Schedule
III hereto.
“Lenders” has the meaning assigned to such term in the recitals hereto.
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"Loan Collateral” means all “Collateral” as defined in the Term Credit Agreement and/or all “U.S. Collateral” as defined in the Revolving Credit Agreement.
“Loan Document Obligations” means (a) the due and punctual payment by each Borrower of (i) the unpaid principal of and interest (including
interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans made to such Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by it under the Revolving Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement
of disbursements, interest thereon (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and obligations to provide
cash collateral, and (iii) all other monetary obligations of such Borrower to any of the Secured Parties under either of the Credit Agreements or any of the other Loan Documents, including obligations to pay fees, expense and reimbursement
obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations of each Borrower under or pursuant to either of the Credit Agreements or any of the other Loan Documents, and (c) the due
and punctual payment and performance of all other obligations of each Loan Party under or pursuant to this Agreement and each of the other Loan Documents.
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.
“Obligations” means (a) the Loan Document Obligations, (b) the due and punctual payment and performance of all obligations of each Loan Party
under each Swap Agreement that (i) is in effect on the Closing Date with a counterparty that is a Revolving Agent, a Revolving Lender or an Affiliate of a
Revolving Agent or a Revolving Lender as of the Closing Date or (ii, (ii) is in effect on the Amendment Effective Date with a counterparty that is a Term Agent, a Term Lender or an Affiliate of a Term Agent or a Term Lender, (iii) is entered into after the
Closing Date with any counterparty that is a Revolving Agent, a Revolving Lender or an Affiliate of a Revolving Agent or a Revolving Lender at the time such Swap Agreement is entered into or (iv) is entered into after the Amendment
Effective Date with any counterparty that is a Term Agent, a Term Lender or an Affiliate of a Term Agent or a Term Lender at the time such Swap Agreement is entered into, and (c) the due and punctual payment and performance of all
obligations of each Borrower and any of its Subsidiaries in respect of overdrafts and related liabilities owed to a Revolving Agent, a Revolving Lender or any of
its Affiliates (or any other Person designated by the Company as a provider of cash management services and entitled to the benefit of this Agreement) and arising from cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer, ACH services and other
cash management arrangements) (the obligations described in clauses (b) andclause (b) above being referred to
herein as “Hedging Obligations” and together with the obligations described in clause (c) above being collectively referred to herein as “Bank Products”).
“Patent License” means any written agreement, now or hereafter in effect, granting to any Pledgor any right to make, use or sell any invention
covered by a Patent, now or hereafter owned by any third party (including, without limitation, any such rights that such Pledgor has the right to license).
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"Patents” means all of the following now owned or hereafter acquired by any Pledgor: (a) all letters patent of the United States or the equivalent thereof in any other country or jurisdiction, including those listed on Schedule
III, and all applications for letters patent of the United States or the equivalent thereof in any other country or jurisdiction, including those listed on Schedule III, and (b) all provisionals, reissues, extensions, continuations,
divisions, continuations-in- part, reexaminations or revisions thereof, and the inventions disclosed or claimed therein, including the right to make, use, import and/or sell the inventions disclosed or claimed therein.
“Perfection Certificate” means a Perfection Certificate with respect to the Pledgors, substantially in the form of Exhibit B,
completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by an Officer of the Company.
“Permitted Liens” means any Lien not prohibited by Section 6.02 of either Credit Agreement.
“Pledged Collateral” has the meaning assigned to such term in Section 3.01.
“Pledged Debt Securities” has the meaning assigned to such term in Section 3.01.
“Pledged Securities” means any promissory notes, stock certificates or other certificated securities now or hereafter included in the Pledged
Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.
“Pledged Stock” has the meaning assigned to such term in Section 3.01.
“Pledgor” shall mean each Borrowerthe Company and each Guarantor.
“Revolving Administrative Agent” has the meaning assigned to such term in the recitals hereto.
“Revolving Agents” shall mean “Agents,” as defined in the Revolving Credit Agreement.
“Revolving Credit Agreement” has the meaning assigned to such term in the recitals hereto.
“Revolving Facility Obligations” means all Obligations now or hereafter owing to
Revolving Facility Secured Parties, and all other indebtedness and obligations now or hereafter owing to the Revolving Facility Secured Parties that is secured by any of the Security Documents; provided that in the event any Hedging Obligations are
owed to a Person that is both a Revolving Facility Secured Party and a Term Loan Secured Party, such Hedging Obligations shall be included solely in Revolving Facility Obligations, unless the provider of such Hedging Obligations and the Company
designate such Hedging Obligations in writing as Term Obligations.
“Revolving Facility Secured Parties” shall have the meaning assigned thereto in the Senior
Lender Intercreditor Agreement.means (a) the Revolving Lenders and any Affiliate (as defined in the Revolving Credit Agreement) of a Revolving Lender or
Revolving Agent that is a provider of cash management services to which any
obligation referred to in clause (c) of the definition of the term “Obligations” hereunder is owed, (b) the Revolving Administrative Agent and the ABL Collateral Agent, (c) each Issuing Bank (as defined in the Revolving Credit Agreement) party to
the Revolving Credit Agreement, (d) each counterparty to any Swap Agreement entered into with a Loan Party (as defined in the Revolving Credit Agreement), the obligations under which constitute Obligations referred to in clauses (b)(i) and
(b)(iii) of the definition thereof, (e) the beneficiaries of each indemnification obligation undertaken by any Loan Party (as defined in the Revolving Credit Agreement) under any Loan Document (as defined in the Revolving Credit Agreement) and
(f) the successors and permitted assigns of each of the foregoing.
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"Second Priority Intercreditor Agreement”
shall mean the Second Amended and Restated Intercreditor Agreement, dated as of February 5, 2008, by and among Credit Suisse, Cayman Islands Branch and Bank of America, N.A., as first lien agents, Wells Fargo Bank, N.A., as trustee, Holdings, the Company and the Subsidiary Loan Parties
party thereto or that shall become party thereto and each Other First Priority Lien Obligations Collateral Agent (as defined therein) from time to time party thereto.
“Secured Parties” means (a) the Term Loan Secured Parties and (b) the Revolving Facility Secured Parties.
“Security Interest” has the meaning assigned to such term in Section 4.01.
“Senior Fixed Collateral Intercreditor Agreement” shall mean the Senior Fixed Collateral
Priority and Intercreditor Agreement, dated as of February 5, 2008, as amended, supplemented or otherwise modified from time to time, among Credit Suisse, Cayman Islands Branch, Bank of America, N.A., Holdings, the Company and certain of the
Company’s Subsidiaries.
“Senior Lender Intercreditor Agreement” shall mean that certain Amended and Restated Senior Lender Priority and Intercreditor Agreement, dated
as of April 3, 2007, among the ABLRevolving Administrative Agent, the Term Loan Administrative Agent,
the ABL Collateral Agent, the Term Collateral Agent, Holdings, Covalencethe Company, and certain
subsidiaries of Covalencethe Company named therein.
“Subsidiary Party” has the meaning assigned to such term in the preliminary statement of this Agreement, and any Subsidiary that becomes a
party hereto pursuant to Section 7.16.
“Term Administrative Agent” has the meaning assigned to such term in the
“Term Agents” shall mean “Agents,” as defined in the Term Credit Agreement.
“Term Credit Agreement” has the meaning assigned to such term in the recitals hereto.
“Term Obligations” means all Obligations now or hereafter owing to Term Loan Secured
Parties, and all other indebtedness and obligations now or hereafter owing to the Term Loan Secured Parties that is secured by any of the Security Documents; provided that in the event any Hedging Obligations are owed to a Person that is both a
Revolving Facility Secured Party and a Term Loan Secured Party, such Hedging Obligations shall be included solely in Revolving Facility Obligations, unless the provider of such Hedging Obligations and the Company designate such Hedging Obligations
in writing as Term Obligations.
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"Trademark License” means any written agreement, now or
hereafter in effect, granting to any Pledgor any right to use any Trademark now or hereafter owned by any third party (including, without limitation, any such rights that such Pledgor has the right to license).
“Trademarks” means all of the following now owned or hereafter acquired by any Pledgor: (a) all trademarks, service marks, corporate names,
company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations thereof
(if any), and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States
or any other country or any political subdivision thereof (except for “intent-to-use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. Sec. 1051, unless and until an Amendment to
Allege Use or a Statement of Use under Sections 1(c) and 1(d) of Lanham Act has been filed, to extent that any assignment of an “intent-to-use” application prior to such filing would violate the Lanham Act), and all renewals thereof, including those
listed on Schedule III and (b) all goodwill associated therewith or symbolized thereby.
“Unfunded Advances/Participations” shall mean (a) with respect to the Revolving Administrative Agent, the aggregate amount, if any (i) made
available to a Borrower on the assumption that each Revolving Lender has made its portion of the applicable Borrowing available to the Revolving Administrative Agent as contemplated by Section 2.06(b) of the Revolving Credit Agreement, and
with respect to which a corresponding amount shall not in fact have been made available to the Revolving Administrative Agent by any such Lender and (ii) of participations in respect of any outstanding Agent Advances that shall not have been funded
by the Revolving Lenders in accordance with Section 2.04(e) of the Revolving Credit Agreement, (b) with respect to the Swingline Lender, the aggregate amount, if any, of participations in respect of any outstanding Swingline Loan that shall
not have been funded by the Revolving Lenders in accordance with Section 2.04(c) of the Revolving Credit Agreement, and (c) with respect to any Issuing Bank, the aggregate amount, if any, of participations in respect of any outstanding
Letters of Credit and Bankers’ Acceptances that shall not have been funded by the Revolving Lenders in accordance with Section 2.05(d) of the Revolving Credit Agreement.
“U.S. Unfunded Advances/Participations” shall mean any Unfunded Advances/Participations
of U.S. Revolving Lenders.
ARTICLE II
GUARANTEE
GUARANTEE
Section 2.01. Guarantee. Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, to the Term Administrative Agent and the Revolving Administrative Agent, respectively, for the ratable benefit of the Term Loan
Secured Parties and the Revolving Facility Secured Parties, respectively, as a primary obligor and not merely as a surety, the due and punctual payment and
performance of the Obligations now or hereafter owing to such Secured Parties. Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentment to, demand of payment from and protest to the Borrowers or any other Loan Party of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.
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Section 2.02. GGuarantee of Payment. Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due
(whether at the stated maturity, by acceleration or otherwise) and not of collection, and waives any right to require that any resort be had by either Administrative Agent or any other Secured Party to any security held for the payment of the
Obligations or to any balance of any deposit account or credit on the books of the Collateral Agent or any other Secured Party in favor of a Borrower or any other person.
Section 2.03 No Limitations, Etc.
(a) Except for termination of a Guarantor’s obligations hereunder as expressly provided for in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise (other than defense of payment or performance). Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder, to the fullest extent permitted by applicable law,
shall not be discharged or impaired or otherwise affected by, and each Guarantor hereby waives any defense to the enforcement hereof by reason of:
(i) the failure of the Administrative Agents or Collateral Agents or any other Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document
or otherwise;
(ii) any rescission, waiver, amendment or modification of, increase in the Obligations with respect to, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including
with respect to any other Guarantor under this Agreement;
(iii) the failure to perfect any security interest in, or the exchange, substitution, release or any impairment of, any security held by the Collateral Agents or any other Secured Party for the Obligations;
(iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations;
(v) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the
payment in full in cash or immediately available funds of all the Obligations),
(vi) any illegality, lack of validity or enforceability of any Obligation,
(vii) any change in the corporate existence, structure or ownership of any Loan Party, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Loan Party or its assets or any
resulting release or discharge of any Obligation,
(viii) the existence of any claim, set-off or other rights that the Guarantor may have at any time against any Borrower, any Collateral Agent, either Administrative Agent, any Secured Party, or any other corporation
or person, whether in connection herewith or any unrelated transactions, provided that nothing herein will prevent the assertion of any such claim by separate suit or compulsory counterclaim,
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(ix) any
action permitted or authorized hereunder, or
(x) any other circumstance (including without limitation, any statute of limitations) or any existence of or reliance on any representation by any Collateral Agent, any Administrative Agent or any other Secured
Party that might otherwise constitute a defense to, or a legal or equitable discharge of, any Borrower or any Guarantor or any other guarantor or surety.
Each Guarantor expressly authorizes the Secured Parties to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any
or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors upon or in
respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause,
or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash or immediately available funds of all the Obligations (other than contingent or unliquidated obligations or liabilities). Subject to
the terms of the Senior Lender Intercreditor Agreement, the Collateral Agents and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party or exercise any other right or remedy available to them against any other Loan Party,
without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations (other than contingent or unliquidated obligations or liabilities) have been paid in full in cash or immediately available
funds. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against any other Loan Party, as the case may be, or any security.
Section 2.04 Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be
restored by any Administrative Agent or any other Secured Party upon the bankruptcy or reorganization of any Borrower or any other Loan Party or otherwise.
Section 2.05. Agreement To Pay; Contribution; Subrogation.
In furtherance of the foregoing and not in limitation of any other right that each Collateral Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of any Borrower to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the applicable Collateral Agent for distribution
to the applicable Secured Parties as provided in the Senior Lender Intercreditor Agreement, in cash the amount of such unpaid Obligation. Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required
to be made to any Secured Party under this guarantee, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in
respect of the Loan Documents. Upon payment by any Guarantor of any sums to the applicable Collateral Agent as provided above, all rights of such Guarantor against any Borrower, or other Loan Party or any other Guarantor arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI.
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Section 2.06. IInformation. Each Guarantor assumes all responsibility for being and keeping itself informed of the financial condition and assets of the Borrowers and each other Loan Party, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that none of the Collateral Agents, any Administrative Agent or the other Secured Parties will have any duty to
advise such Guarantor of information known to it or any of them regarding such circumstances or risks.
Section 2.07. Maximum Liability.(a) Each Guarantor, and by its acceptance of this guarantee, each Collateral Agent and each Secured Party hereby confirms that it is the intention of all such Persons that this guarantee and the Obligations of
each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the U.S. Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to thus guarantee and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Collateral Agents and the
Secured Parties hereby irrevocably agree that the Obligations of each Subsidiary Party under this guarantee at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this guarantee not constituting
a fraudulent transfer or conveyance.
Section 2.08. Payment
Free and Clear of Taxes. Any and all payments by or on account of any obligation of any Guarantor hereunder or under any other Loan Document shall be made free and clear of, and without deduction for,
any Indemnified Taxes or Other Taxes on the same terms and to the same extent that payments by any Loan Party are required to be made pursuant to the terms of Section 2.17 of each Credit Agreement. The provisions of Section 2.17 of the applicable
Credit Agreement shall apply to each Guarantor mutatis mutandis.
Section 2.09. No
Foreign Guarantee of U.S. Obligations. Notwithstanding anything to the contrary contained herein, no Foreign Subsidiary shall, or shall be deemed to, provide a guarantee of any Obligations of any Borrowerthe Company or any Domestic Subsidiary pursuant to the terms hereof.
ARTICLE III
PLEDGE OF SECURITIES
PLEDGE OF SECURITIES
Section 3.01. Pledge. As security for the payment or performance, as the case may be, in full of its Obligations, eachEach Pledgor hereby assigns and pledges to each of (A) the ABL Collateral Agent and its successors
and permitted assigns for the benefit of the Revolving Facility Secured Parties as security for the payment or performance, as the case may be, in full of the Revolving
Facility Obligations, and (B) the Term Collateral Agent and its successors and permitted assigns for the benefit of the Term Loan Secured Parties as security for the payment or performance, as the case may be, in full of the Term Obligations, and hereby grants to each of (X) the ABL Collateral Agent and its
successors and permitted assigns for the benefit of the Revolving Facility Secured Parties as security for the payment or performance, as the case may be, in full of the Revolving Facility Obligations and (Y) the Term Collateral Agent and its successors and permitted assigns for the benefit of the Term Loan Secured Parties as security for the payment or performance, as the case may be, in
full of the Term Obligations, a security interest in all of such Pledgor’s right, title and interest in, to and under (a) the Equity interests directly owned by it (including those listed on Schedule II) and any other Equity
Interests obtained in the future by such Pledgor and any certificates representing all such Equity Interests (the “Pledged Stock”); provided that the Pledged Stock shall not include (i) (A) more than
65% of the issued and outstanding voting Equity Interests of any “first tier” Foreign Subsidiary directly owned by such Pledgor, (B) more than 65% of the issued and outstanding voting Equity Interests of any “first tier” Qualified CFC Holding
Company directly owned by such Pledgor, (C) any issued and outstanding Equity Interest of any Foreign Subsidiary that is not a “first tier” Foreign Subsidiary, (D) any issued and outstanding Equity Interests of any Qualified CFC Holdings Company
that is not a “first tier” Qualified CFC Holding Company or (E) any Equity Interests in NIM Holdings Limited, Berry Plastics Acquisition Corporation II, Berry Plastics Acquisition Corporation XIV, LLC, Berry Plastics Asia Pte. Ltd., or Ociesse
s.r.l., (ii) to the extent applicable law requires that a Subsidiary of such Pledgor issue directors’ qualifying shares, such shares or nominee or other similar shares, (iii) any Equity Interests with respect to which the Collateral and Guarantee
Requirement or the other paragraphs of the respective Sections 5.10 of each Credit Agreements need not be satisfied by reason of Section 5.10(g) of each Credit Agreement, (iv) any Equity Interests of a Subsidiary to the extent that, as of the
Closing Date, and for so long as, such a pledge of such Equity Interests would violate a contractual obligation binding on or relating to such Equity Interests, or (v) any Equity Interests of a person that is not directly or indirectly a
Subsidiary; (b)(i) the debt obligations listed opposite the name of such Pledgor on Schedule II, (ii) any debt obligations in the future issued to such Pledgor having, in the case of each instance of debt securities, an aggregate principal
amount in excess of $5.0 million (which pledge, in the case of any intercompany note evidencing debt owed by a Foreign Subsidiary to a Loan Party, shall be limited to 65% of the amount outstanding thereunder), and (iii) the certificates, promissory
notes and any other instruments, if any, evidencing such debt obligations (the “Pledged Debt Securities”); (c) subject to Section 3.05 hereof, all payments of principal or interest, dividends, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other proceeds received in respect of, the securities referred to in clauses (a) and (b) above; (d) subject to Section 3.05
hereof, all rights and privileges of such Pledgor with respect to the securities and other property referred to in clauses (a), (b) and (c) above; and (e) all proceeds of any of the foregoing (the items referred to in clauses (a) through (e) above
being collectively referred to as the “Pledged Collateral”).
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TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto each of (A) the ABL Collateral Agent and its successors and permitted assigns for the benefit of the Revolving Facility Secured Parties and (B) the
Term Collateral Agent and its successors and permitted assigns for the benefit of the Term Loan Secured Parties, forever; subject,
however, to the terms, covenants and conditions hereinafter set forth.
Section 3.02. Delivery
of the Pledged Collateral.
(a) Each Pledgor agrees promptly to deliver or cause to be delivered to the Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving
Facility Secured Parties, any and all Pledged Securities to the extent such Pledged Securities, in the case of promissory notes or other instruments evidencing Indebtedness, are required to be delivered pursuant to paragraph (b) of this Section
3.02. If any Pledged Stock that is uncertificated on the date hereof shall hereafter become certificated, the applicable Pledgor shall promptly cause the certificate or certificates representing Pledged Stock to be delivered to the Term Collateral
Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving Facility Secured Parties, together with the accompanying stock powers or other documentation required by
Section 3.02(c). None of the Pledgors shall permit any other party to “control” (for purposes of Section 8-106 of the New York UCC (or any analogous provision of the Uniform Commercial Code in effect in the jurisdiction whose law applies)) any
uncertificated securities that constitute Pledged Collateral other than the Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving Facility Secured
Parties.
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(b) o the extent any Indebtedness for borrowed money constitutes Pledged Collateral (other than (i) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of
Holdings, the Company and its Subsidiaries or (ii) to the extent that a pledge of such promissory note or instrument would violate applicable law) the Pledgor holding such Indebtedness for borrowed money shall cause such Indebtedness to be
evidenced by a duly executed promissory note, such Pledgor shall cause such promissory note to be pledged and delivered to the Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor
Agreement, as bailee for the Revolving Facility Secured Parties, pursuant to the terms hereof; provided that, such pledge in the case of any intercompany note evidencing debt owed by a Foreign Subsidiary to
a Loan Party, shall be limited to 65% of the amount outstanding thereunder. To the extent any such promissory note is a demand note, each Pledgor party thereto agrees, if requested by any Collateral Agent, to immediately demand payment thereunder
upon an Event of Default specified under Section 7.01(b), (c), (f), (h) or (i) of either Credit Agreement unless such demand would not be commercially reasonable or would otherwise expose Pledgor to liability to the maker.
(c) Upon delivery to the Term Collateral Agent, (i) any Pledged Securities required to be delivered pursuant to the foregoing paragraphs (a) and (b) of this Section 3.02 shall be accompanied by stock powers or note powers, as
applicable, duly executed in blank or other instruments of transfer reasonably satisfactory to the Collateral Agents and by such other instruments and documents as the Collateral Agents may reasonably request and (ii) all other property composing
part of the Pledged Collateral delivered pursuant to the terms of this Agreement shall be accompanied to the extent necessary to perfect the security interest in or allow realization on the Pledged Collateral by proper instruments of assignment
duly executed by the applicable Pledgor and such other instruments or documents as the Collateral Agents may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule shall
be attached hereto as Schedule II (or a supplement to Schedule II, as applicable) and made a part hereof; provided that failure to attach any such schedule hereto shall not affect the
validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.
Section 3.03. Representations,
Warranties and Covenants. The Pledgors, jointly and severally, represent, warrant and covenant to and with (i) the ABL Collateral Agent for the benefit of the Revolving Facility Secured Parties and (ii)
the Term Collateral Agent for the benefit of the Term Loan Secured Parties:
(a) Schedule II correctly sets
forth the percentage of the issued and outstanding shares of each class of the Equity Interests of the issuer thereof represented by the Pledged Stock and includes all Equity Interests, debt securities and promissory notes or instruments evidencing
Indebtedness required to be (i) pledged in order to satisfy the Collateral and Guarantee Requirement, or (ii) delivered pursuant to Section 3.02(b);
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(b) the Pledged Stock and Pledged
Debt Securities (solely with respect to Pledged Debt Securities issued by a person that is not a Subsidiary of Holdings or an Affiliate of any such subsidiary, to the best of each Pledgor’s knowledge) have been duly and validly authorized and
issued by the issuers thereof and (i) in the case of Pledged Stock, are fully paid and nonassessable and (ii) in the case of Pledged Debt Securities (solely with respect to Pledged Debt Securities issued by a person that is not a Subsidiary of
Holdings or an Affiliate of any such subsidiary, to the best of each Pledgor’s knowledge) are legal, valid and binding obligations of the issuers thereof, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding at law or in equity) and an implied covenant of good faith and fair dealing;
(c) except for the security interests
granted hereunder, each Pledgor (i) is and, subject to any transfers made in compliance with both of the Credit Agreements, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II
as owned by such Pledgor, (ii) holds the same free and clear of all Liens, other than Permitted Liens, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the
Pledged Collateral, other than pursuant to a transaction permitted by each Credit Agreement and other than Permitted Liens and (iv) subject to the rights of such Pledgor under the Loan Documents to dispose of Pledged Collateral, will use
commercially reasonable efforts to defend its title or interest hereto or therein against any and all Liens (other than Permitted Liens), however arising, of all persons;
(d) other than as set forth in each
Credit Agreement or the schedules thereto, and except for restrictions and limitations imposed by the Loan Documents or securities laws generally or otherwise permitted to exist pursuant to the terms both of the Credit Agreements, the Pledged Stock
(other than partnership interests) is and will continue to be freely transferable and assignable, and none of the Pledged Stock is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or
contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Stock hereunder, the sale or disposition thereof pursuant hereto or the exercise by any Collateral Agent of rights and remedies
hereunder;
(e) each Pledgor has the power and
authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated;
(f) other than as set forth in each
Credit Agreement or the respective schedules thereto, no consent or approval of any Governmental Authority, any securities exchange or any other person was or is necessary to the validity of the pledge effected hereby (other than such as have been
obtained and are in full force and effect);
(g) by virtue of the execution and
delivery by the Pledgors of this Agreement and the Foreign Pledge Agreements, when any Pledged Securities (including Pledged Stock of any Domestic Subsidiary or any Qualified CFC Holding Company and any foreign stock covered by a Foreign Pledge
Agreement) are delivered to the Collateral Agent, for the ratable benefit of the Secured Parties, in accordance with this Agreement and a financing statement covering such Pledge Securities is filed in the appropriate filing office, each of (A) the
ABL Collateral Agent and its successors and permitted assigns for the benefit of the Revolving Facility Secured Parties and (B) the Term Collateral Agent and its
successors and permitted assigns for the benefit of the Term Loan Secured Parties will obtain a legal, valid and perfected lien upon and security interest in
such Pledged Securities under the New York UCC, subject only to Liens permitted under each Credit Agreement or arising by operation of law, as security for the payment and performance of the Obligations;
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(h) each Pledgor that is an issuer of
the Pledged Collateral confirms that it has received notice of the security interest granted hereunder and consents to such security interest and agrees to transfer record ownership of the securities issued by it in connection with any request by
any Administrative Agent;
Section 3.04. Registration
in Nominee Name; Denominations. The Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving Facility
Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the applicable Pledgor, endorsed or assigned in blank or in favor of the Collateral Agents or, if an Event of Default shall
have occurred and be continuing, in its own name as pledgee or the name of its nominee (as pledgee or as sub-agent). Each Pledgor will promptly give to each Collateral Agent copies of any notices or other communications received by it with respect
to Pledged Securities registered in the name of such Pledgor. If an Event of Default shall have occurred and be continuing, the Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor
Agreement, as bailee for the Revolving Facility Secured Parties, shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement.
Each Pledgor shall use its commercially reasonable efforts to cause any Loan Party that is not a party to this Agreement to comply with a request by any Collateral Agent, pursuant to this Section 3.04, to exchange certificates representing Pledged
Securities of such Loan Party for certificates of smaller or larger denominations.
Section 3.05. Voting
Rights; Dividends and Interest, Etc.
(a) Unless and until an Event of Default shall have occurred and be continuing and an Administrative Agent shall have given notice to the relevant Pledgors of such Administrative Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms
of this Agreement, the Credit Agreements and the other Loan Documents; provided, that, except as permitted under both Credit Agreements, such rights and powers shall not be exercised in any manner that
could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any Administrative Agent, any Collateral Agent, or the other Secured Parties under this Agreement, either of the Credit
Agreements or any other Loan Document or the ability of the Secured Parties to exercise the same.
(ii) Each Administrative Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to
the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of both Credit Agreements, the other Loan Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed
or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any
part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in
respect of any Pledged Securities that would constitute Pledged Securities, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part
of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral
Agents, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Collateral Agents, for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to each
Administrative Agent).
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(b) Upon the occurrence and during the continuance of an Event of Default and after notice by a Collateral Agent to the Company of a Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to receive
dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the
applicable Secured Parties, in the applicable Collateral Agent which, subject to the terms of the Senior Lender Intercreditor Agreement, shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal
or other distributions. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be
held separate and apart therefrom, shall be held in trust for the benefit of the applicable Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the applicable Collateral Agent, for the ratable
benefit of the applicable Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the applicable Collateral Agent). Any and all money and other property paid over to or received by any Collateral Agent
pursuant to the provisions of this paragraph (b) shall be retained by such Collateral Agent in an account to be established by such Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions
of Section 5.02 hereof. After all Events of Default have been cured or waived and the Company has delivered to the Collateral Agents a certificate to that effect, the Collateral Agents shall promptly repay to each Pledgor (without interest) all
dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default and after notice by any Collateral Agent to the Company of such Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to
exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agents under paragraph (a)(ii) of this Section 3.05, shall cease, and all
such rights shall thereupon become vested in the Collateral Agents, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers, subject to the
terms of the Senior Lender Intercreditor Agreement; provided that, unless otherwise directed by the Required Lenders under each Credit Agreement, the Collateral Agents shall have the right from time to
time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Company has delivered to the Collateral Agents a certificate to that
effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
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ARTICLE IV
SECURITY INTERESTS IN OTHER PERSONAL PROPERTY
SECURITY INTERESTS IN OTHER PERSONAL PROPERTY
Section 4.01. Security
Interest.
(a) As security for the payment or performance when due (whether
at the stated maturity, by acceleration or otherwise), as the case may be, in full of its Obligations, eachEach Pledgor other than Holdings (all references to a Pledgor or to the Pledgors in this Article IV shall be deemed to be a reference to each Pledgor other than
Holdings) hereby assigns and pledges to each of (A) the ABL Collateral Agent and its successors and permitted assigns for the benefit of the Revolving Facility Secured
Parties as security for the payment or performance, as the case may be, in full of the Revolving Facility Obligations and (B) the Term Collateral Agent
and its successors and permitted assigns for the benefit of the Term Loan Secured Parties as security for the payment or performance, as the case may be, in full of the Term Obligations, and hereby grants to each of (A) the ABL Collateral Agent and its successors and permitted assigns for the benefit of the Revolving Facility Secured Parties as security for the payment or performance, as the case
may be, in full of the Revolving Facility Obligations and (B) the Term Collateral Agent and its successors and permitted assigns for the benefit of the Term
Loan Secured Parties as security for the payment or performance, as the case may be, in full of the Term Obligations, a security interest (the “Security
Interest”) in all right, title and interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such Pledgor or in which such Pledgor now has or at any time in the future may acquire any
right, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Commercial Tort Claims;
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(xii) ll other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xiii) all books and records pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all proceeds, Supporting Obligations and products of any and all of the foregoing and all collateral security and guarantees given by any person with respect to any of
the foregoing.
Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a
certificate of title or ownership, whether now owned or hereafter acquired, (b) any assets (including Equity Interests), whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement or the other paragraphs
of Section 5.10 of the both Credit Agreements would not be required to be satisfied by reason of Section 5.10(g) of such Credit Agreements if hereafter acquired, (c) any property excluded from the definition of Pledged Collateral pursuant to Section
3.01 hereof, (d) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (e) any Pledgor’s right, title or interest in any license,
contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the
terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective
pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity); provided, that
immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been
in effect, or (f) any Equipment owned by any Pledgor that is subject to a purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such Capital Lease
Obligation) prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other security interest on such Equipment.
(b) Each Pledgor hereby irrevocably authorizes each Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9
Collateral or any part thereof and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (i) whether
such Pledgor is an organization, the type of organization and any organizational identification number issued to such Pledgor, (ii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to
which such Article 9 Collateral relates and (iii) a description of collateral that describes such property in any other manner as each Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security
interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property.” Each Pledgor agrees to provide such information to each Collateral Agent promptly upon request.
The Collateral Agents are further authorized to file with the United States Patent and Trademark Office or United Stales Copyright Office (or any
successor office or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Pledgor,
without the signature of such Pledgor, and naming such Pledgor or the Pledgors as debtors and each Collateral Agent as secured party.
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(c) The Security Interest is granted as security only and shall not subject any Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Pledgor with respect to or arising out
of the Article 9 Collateral.
Section 4.2. Representations
and Warranties. The Pledgors jointly and severally represent and warrant to each Collateral Agent and the Secured Parties that:
(a) Each Pledgor has good and valid
rights in and title to the Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder and has full power and authority to grant to the Collateral Agents the Security Interest in such Article 9 Collateral
pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other person other than any consent or approval that has been obtained and is in full force
and effect or has otherwise been disclosed herein or in both Credit Agreements or, in the case of the Revolving Credit Agreement, any consent of a landlord, warehouseman or bailee contemplated by clause (i) of the definition of “Eligible Inventory”
to the extent that (i) the requirements of the proviso to such clause have been complied with and (ii) the absence of such consent does not adversely affect the perfection or priority of any Collateral Agent’s security interest in any Inventory of
the BorrowersPledgors.
(b) The Perfection Certificate has
been duly prepared, completed and executed and the information set forth therein, including the exact legal name of each Pledgor, is correct and complete, in all material respects, as of the Closing Date. The Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations containing a description of the Article 9 Collateral that have been prepared by the Collateral Agents based upon the information
provided to the Collateral Agents in the Perfection Certificate for filing in each governmental, municipal or other office specified in Schedule 7 to the Perfection Certificate (or specified by notice from the Company to the Collateral
Agents after the Closing Date in the case of filings, recordings or registrations required by Section 5.10 of each Credit Agreement) constitute all the filings, recordings and registrations (other than filings required to be made in the United
States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in Article 9 Collateral including all material United States Patents, United States registered Trademarks and United States
registered Copyrights) that are necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of each of (A) the ABL Collateral Agent and its successors and permitted assigns for
the benefit of the Revolving Facility Secured Parties and (B) the Term Collateral Agent and its successors and permitted assigns for the benefit of the Term Loan Secured Parties in respect of all Article 9 Collateral (other than Commercial Tort Claims) in which the Security Interest may be perfected by filing,
recording or registration in the United States (or any political subdivision thereof) and its territories and possessions, and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary in any
such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements or amendments. Each Pledgor represents and warrants that a fully executed Intellectual Property Security Agreement containing a
description of all Article 9 Collateral consisting of Intellectual Property with respect to United States Patents (and Patents for which United States registration applications are pending), United States registered Trademarks (and Trademarks for
which United States registration applications are pending) and United States registered Copyrights (and Copyrights for which United States registration applications are pending) has been delivered to the Collateral Agents for recording with the
United States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. Sec. 261, 15 U.S.C. Sec. 1060 or 17 U.S.C. Sec. 205 and the regulations thereunder, as applicable, and reasonably requested by any Collateral
Agent, to protect the validity of and to establish a legal, valid and perfected security interest in favor of such Collateral Agent, for the ratable benefit of the Secured Parties, in respect of all Article 9 Collateral consisting of such material
Intellectual Property in which a security interest may be perfected by recording with the United States Patent and Trademark Office and the United States Copyright Office, and no further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary (other than such actions as are necessary to perfect the Security Interest with respect to any Article 9 Collateral consisting of Patents, Trademarks and Copyrights (or registration or application for
registration thereof) acquired or developed after the date hereof).
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(c)
The Security Interest constitutes (i) a legal and valid security interest in all the Article 9 Collateral (other than Article 9 Collateral described in Section 3.01(a)(xii)) securing the payment and performance of the Obligations, (ii)
subject to the filings described in Section 4.02(b), a perfected security interest in all Article 9 Collateral (other than Commercial Tort Claims) in which a security interest may be perfected by filing, recording or registering a financing
statement or analogous document in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the Uniform Commercial Code or other applicable law in such jurisdictions and (iii) a security interest that
shall be perfected in all Article 9 Collateral in which a security interest may be perfected upon the receipt and recording of the Intellectual Property Security Agreement with the United States Patent and Trademark Office and the United States
Copyright Office upon the making of such filings with such office, in each case, as applicable, with respect to material Intellectual Property Collateral. The Security Interest is and shall be prior to any other Lien on any of the Article 9
Collateral other than Permitted Liens.
(d) The Article 9 Collateral is owned
by the Pledgors free and clear of any Lien, other than Permitted Liens. None of the Pledgors has filed or consented to the filing of (i) any financing statement or analogous document under the Uniform Commercial Code or any other applicable laws
covering any Article 9 Collateral, (ii) any assignment in which any Pledgor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with the United States Patent and Trademark Office or the
United States Copyright Office or (iii) any assignment in which any Pledgor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office,
which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Permitted Liens.
(e) None of the Pledgors holds any
Commercial Tort Claim individually in excess of $5.0 million as of the Closing Date except as indicated on the Perfection Certificate.
(f) Except as set forth in the
Perfection Certificate, as of the Closing Date, all Accounts have been originated by the Pledgors and all Inventory has been produced or acquired by the Pledgors in the ordinary course of business.
(g) As to itself and its Article 9
Collateral consisting of Intellectual Property (the “Intellectual Property Collateral”), to the best of each Pledgor’s knowledge:
(i) The Intellectual Property Collateral set forth on Schedule III includes all of the material Patents, domain names, Trademarks, Copyrights and IP Agreements owned by such
Pledgor as of the date hereof.
(ii) The Intellectual Property Collateral is subsisting and has not been adjudged invalid or unenforceable in whole or part, and to the best of such Pledgor’s knowledge, is valid
and enforceable, except as would not reasonably be expected to have a Material Adverse Effect. Such Pledgor is not aware of any uses of any item of Intellectual Property Collateral that would be expected to lead to such item becoming invalid or
unenforceable, except as would not reasonably be expected to have a Material Adverse Effect.
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Such Pledgor has made or performed all commercially reasonable acts, including without limitation filings, recordings and payment of all required
fees and taxes, required to maintain and protect its interest in each and every item of Intellectual Property Collateral in full force and effect in the United States and such Pledgor has used proper statutory notice in connection with its use of
each Patent, Trademark and Copyright in the Intellectual Property Collateral, in each case, except to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(iii) With respect to each IP Agreement, the absence, termination or violation of which would reasonably be expected to have a Material Adverse Effect: (A) such Pledgor has not
received any notice of termination or cancellation under such IP Agreement; (B) such Pledgor has not received any notice of a breach or default under such IP Agreement, which breach or default has not been cured or waived; and (C) neither such
Pledgor nor any other party to such IP Agreement is in breach or default thereof in any material respect, and no event has occurred that, with notice or lapse of time or both, would constitute such a breach or default or permit termination,
modification or acceleration under such IP Agreement.
(iv)(iv) Except as would not reasonably be expected to have a Material Adverse Effect, no Pledgor or Intellectual Property Collateral is subject to any outstanding consent,
settlement, decree, order, injunction, judgment or ruling restricting the use of any Intellectual Property Collateral or that would impair the validity or enforceability of such Intellectual Property Collateral.
Section 4.03. Covenants.
(a) Each Pledgor agrees promptly to notify each Collateral Agent in writing of any change (i) in its corporate or organization name, (ii) in its identity or type of organization or corporate structure, (iii) in its Federal Taxpayer
Identification Number or organizational identification number or (iv) in its jurisdiction of organization. Each Pledgor agrees promptly to provide each Collateral Agent with certified organizational documents reflecting any of the changes
described in the immediately preceding sentence. Each Pledgor agrees not to effect or permit any change referred to in the first sentence of this paragraph (a) unless all filings have been made, or will have been made within any applicable
statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agents to continue at all times following such change to have a valid, legal and perfected first priority security interest in all the
Article 9 Collateral, for the ratable benefit of the Secured Parties. Each Pledgor agrees promptly to notify each Collateral Agent if any material portion of the Article 9 Collateral owned or held by such Pledgor is damaged or destroyed.
(b) Subject to the rights of such Pledgor under the Loan Documents to dispose of Collateral, each Pledgor shall, at its own expense, use commercially reasonable efforts to defend title to the Article 9 Collateral against all persons
and to defend the Security Interest of the Collateral Agents, for the ratable benefit of the Secured Parties, in the Article 9 Collateral and the priority thereof against any Lien that is not a Permitted Lien.
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(c) ach Pledgor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as any Collateral Agent may from time to time reasonably
request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including, without limitation, the payment of any fees and taxes required in connection with the execution and delivery of
this Agreement and the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith, all in accordance with the terms hereof and of Section 5.10 of
the Credit Agreements. If any Indebtedness payable under or in connection with any of the Article 9 Collateral that is in excess of $5.0 million shall be or become evidenced by any promissory note or other instrument, such note or instrument shall
be promptly pledged to each of (A) the ABL Collateral Agent and its successors and permitted assigns for the benefit of the Revolving Facility Secured Parties
and (B) the Term Collateral Agent and its successors and permitted assigns for the benefit of the Term Loan Secured Parties, and delivered to the Term Collateral
Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving Facility Secured Parties, duly endorsed in a manner reasonably satisfactory to the Collateral Agents.
Without limiting the generality of the foregoing, each Pledgor hereby authorizes each Collateral Agent, with prompt notice thereof to the Pledgors,
to supplement this Agreement by supplementing Schedule III or adding additional schedules hereto to specifically identify any asset or item that may constitute material Copyrights, Patents, Trademarks, Copyright Licenses, Patent Licenses or
Trademark Licenses; provided that any Pledgor shall have the right, exercisable within 30 days after the Company has been notified by any Collateral Agent of the specific identification of such Article 9
Collateral, to advise each Collateral Agent in writing of any inaccuracy of the representations and warranties made by such Pledgor hereunder with respect to such Article 9 Collateral. Each Pledgor agrees that it will use its commercially reasonable
efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Article 9 Collateral within 30 days after the date it has been notified by any Collateral
Agent of the specific identification of such Article 9 Collateral.
(d) After the occurrence of an Event of Default and during the continuance thereof, any Collateral Agent shall have the right to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status
of, or any other matter relating to, the Article 9 Collateral, including, in the case of Accounts or Article 9 Collateral in the possession of any third person, by contacting Account Debtors or the third person possessing such Article 9 Collateral
for the purpose of making such a verification. The Collateral Agent shall have the right to share any information it gains from such inspection or verification with any Secured Party.
(e) At its option, any Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Article 9 Collateral and not a
Permitted Lien, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Pledgor fails to do so as required by either Credit Agreement or this Agreement, and each Pledgor jointly and severally agrees to
reimburse each Collateral Agent on demand for any reasonable payment made or any reasonable expense incurred by such Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this Section 4.03(e) shall be interpreted as excusing any Pledgor from the performance of, or imposing any obligation on any Collateral Agent or any Secured Party to cure or perform, any
covenants or other promises of any Pledgor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents.
(f) Each Pledgor (rather than any Collateral Agent or any Secured Party) shall remain liable for the observance and performance of all the conditions and obligations to be observed and performed by it under each contract, agreement
or instrument relating to the Article 9 Collateral and each Pledgor jointly and severally agrees to indemnify and hold harmless each Collateral Agent and the Secured Parties from and against any and all liability for such performance.
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(g) one of the Pledgors shall make or permit to be made an assignment, pledge or hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9 Collateral, except as expressly permitted by each
Credit Agreement. None of the Pledgors shall make or permit to be made any transfer of the Article 9 Collateral and each Pledgor shall remain at all times in possession of the Article 9 Collateral owned by it, except as permitted by each Credit
Agreement.
(h) [Reserved].
(i) Each Pledgor irrevocably makes, constitutes and appoints each Collateral Agent (and all officers, employees or agents designated by such Collateral Agent) as such Pledgor’s true and lawful agent (and attorney-in-fact) for the
purpose, during the continuance of an Event of Default, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Pledgor on any check, draft, instrument or other item of
payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Pledgor at any time or times shall fail to obtain or maintain any of the policies of insurance
required hereby or to pay any premium in whole or part relating thereto, any Collateral Agent may, without waiving or releasing any obligation or liability of the Pledgors hereunder or any Event of Default, in its sole discretion, obtain and
maintain such policies of insurance and pay such premium and take any other actions with respect thereto as such Collateral Agent reasonably deems advisable. All sums disbursed by the Collateral Agents in connection with this Section 4.03(i),
including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by the Pledgors to the Collateral Agents and shall be additional Obligations secured hereby.
Section 4.04. Other
Actions. In order to further ensure the attachment, perfection and priority of, and the ability of any Collateral Agent to enforce, for the ratable benefit of the Secured Parties, the Collateral Agent’s
security interest in the Article 9 Collateral, each Pledgor agrees, in each case at such Pledgor’s own expense, to take the following actions with respect to the following Article 9 Collateral:
(a) Instruments
and Tangible Chattel Paper. If any Pledgor shall at any time hold or acquire any Instruments (other than checks received and processed in the ordinary course of business) or Tangible Chattel Paper evidencing an amount in excess of $5.0
million, such Pledgor shall forthwith endorse, assign and deliver the same to the Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving Facility
Secured Parties, accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agents may from time to time reasonably request.
(b) Investment
Property. Except to the extent otherwise provided in Article III, if any Pledgor shall at any time hold or acquire any Certificated Security included in the Pledged Collateral, such Pledgor shall forthwith endorse, assign and
deliver the same to the Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving Facility Secured Parties accompanied by such instruments of transfer
or assignment duly executed in blank as any Collateral Agent may from time to time reasonably specify. If any security of a domestic issuer now owned or hereafter acquired by any Pledgor is uncertificated and is issued to such Pledgor or its
nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agents of such uncertificated securities and (i) upon any Collateral Agent’s reasonable request or (ii) upon the occurrence and during the continuance of an
Event of Default, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agents, either (i) cause the issuer to agree to comply with instructions from the Term Collateral Agent as to such security, without further
consent of any Pledgor or such nominee, or (ii) cause the issuer to register the Term Collateral Agent, as agent for the Term Loan Secured Parties and, pursuant to the Senior Lender Intercreditor Agreement, as bailee for the Revolving Facility
Secured Parties, as the registered owner of such security. If any security or other Investment Property, whether certificated or uncertificated, representing an Equity Interest in a third party and having a fair market value in excess of $5.0
million now or hereafter acquired by any Pledgor is held by such Pledgor or its nominee through a securities intermediary or commodity intermediary, such Pledgor shall promptly notify the Collateral Agents thereof and, at any Collateral Agent’s
request and option, pursuant to a Control Agreement in form and substance reasonably satisfactory to the Collateral Agents, either (A) cause such securities intermediary or commodity intermediary, as applicable, to agree, in the case of a
securities intermediary, to comply with entitlement orders or other instructions from the Collateral Agent to such securities intermediary as to such securities or other investment Property or, in the case of a commodity intermediary, to apply any
value distributed on account of any commodity contract as directed by the Term Collateral Agent to such commodity intermediary, in each case without further consent of any Pledgor or such nominee, or (B) in the case of Financial Assets or other
Investment Property held through a securities intermediary, arrange for the Collateral Agents to become entitlement holders with respect to such Investment Property, for the ratable benefit of the Secured Parties, with such Pledgor being permitted,
only with the consent of the Collateral Agents, to exercise rights to withdraw or otherwise deal with such Investment Property. Each Collateral Agent agrees with each of the Guarantors that each Collateral Agent shall not give any such entitlement
orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by any Pledgor, unless an Event of Default has
occurred and is continuing or, after giving effect to any such withdrawal or dealing rights, would occur. The provisions of this paragraph (b) shall not apply to any Financial Assets credited to a securities account for which any Collateral Agent
is the securities intermediary.
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(c) Commercial
Tort Claims. If any Pledgor shall at any time hold or acquire a Commercial Tort Claim in an amount reasonably estimated to exceed $5,000,000, such Pledgor shall promptly notify the Collateral Agents thereof in a writing signed by such
Pledgor, including a summary description of such claim, and grant to the Collateral Agents in writing a security interest therein and in the proceeds thereof, all under the terms and provisions of this Agreement, with such writing to be in form and
substance reasonably satisfactory to the Collateral Agents.
Section 4.05. Covenants
Regarding Patent, Trademark and Copyright Collateral.
(a) Each Pledgor agrees that it will not knowingly do any act or omit to do any act (and will exercise commercially reasonable efforts to prevent its licensees from doing any act or omitting to do any act) whereby any Patent that is
material to the normal conduct of such Pledgor’s business may become prematurely invalidated, abandoned, lapsed or dedicated to the public, and agrees that it shall take commercially reasonable steps with respect to any material products covered by
any such Patent as necessary and sufficient to establish and preserve its rights under applicable patent laws.
(b) Each Pledgor will, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each material Trademark necessary to the normal conduct of such Pledgor’s business, (i) maintain such
Trademark in full force free from any adjudication of abandonment or invalidity for non-use, (ii) maintain the quality of products and services offered under such Trademark, (iii) display such Trademark with notice of federal or foreign
registration or claim of trademark or service mark as required under applicable law and (iv) not knowingly use or knowingly permit its licensees’ use of such Trademark in violation of any third-party rights.
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(c) ach Pledgor will, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each work covered by a material Copyright necessary to the normal conduct of such Pledgor’s business that it
publishes, displays and distributes, use copyright notice as required under applicable copyright laws.
(d) Each Pledgor shall notify the Collateral Agents promptly if it knows that any Patent, Trademark or Copyright material to the normal conduct of such Pledgor’s business may imminently become abandoned, lapsed or dedicated to the
public, or of any materially adverse determination or development, excluding office actions and similar determinations or developments in the United States Patent and Trademark Office, United States Copyright Office, any court or any similar office
of any country, regarding such Pledgor’s ownership of any such material Patent, Trademark or Copyright or its right to register or to maintain the same.
(e) Each Pledgor, either itself or through any agent, employee, licensee or designee, shall (i) inform the Collateral Agents on an annual basis of each application by itself, or through any agent, employee, licensee or designee, for
any Patent with the United States Patent and Trademark Office and each registration of any Trademark or Copyright with the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or agency in any other
country filed during the preceding twelve-month period, in each case to the extent such application or registration relates to Intellectual Property material to the normal course of such Pledgor’s business and (ii) upon the reasonable request of
any Collateral Agent, execute and deliver any and all agreements, instruments, documents and papers as such Collateral Agent may reasonably request to evidence the Collateral Agents’ security interest in such Patent, Trademark or Copyright.
(f) Each Pledgor shall exercise its reasonable business judgment consistent with the practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or
agency in any other country with respect to maintaining and pursuing each application relating to any Patent, Trademark and/or Copyright (and obtaining the relevant grant or registration) material to the normal conduct of such Pledgor’s business
and to maintain (i) each issued Patent and (ii) the registrations of each Trademark and each Copyright that is material to the normal conduct of such Pledgor’s business, including, when applicable and necessary in such Pledgor’s reasonable business
judgment, timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if any Pledgor believes necessary in its reasonable business judgment, to initiate opposition,
interference and cancellation proceedings against third parties.
(g) In the event that any Pledgor knows or has reason to know that any Article 9 Collateral consisting of a Patent, Trademark or Copyright material to the normal conduct of its business has been or is about to be materially
infringed, misappropriated or diluted by a third party, such Pledgor shall promptly notify the Collateral Agents and shall, if such Pledgor deems it necessary in its reasonable business judgment, promptly sue and recover any and all damages, and
take such other actions as are reasonably appropriate under the circumstances.
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ARTICLE V
REMEDIES; APPLICATION OF PROCEEDS
REMEDIES; APPLICATION OF PROCEEDS
Section 5.01. RRemedies
Upon Default. Upon the occurrence and during the continuance of any Event of Default, each Pledgor agrees to deliver on demand each item of Collateral to the Collateral Agent demanding such Collateral
(provided that if both Collateral Agents demand such Collateral, such Pledgor shall satisfy its obligations pursuant to the foregoing clause by delivering such Collateral to either Collateral Agent), and it is agreed that each Collateral Agent
shall have the right to take any of or all the following actions at the same or different times (each Collateral Agent acknowledging the terms of the Senior Lender Intercreditor Agreement): (a) with respect to any Article 9 Collateral consisting
of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Pledgors to the applicable Collateral Agent (on behalf of the
applicable Secured Parties) or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner
as such Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained with the use of commercially reasonable efforts, which each Pledgor hereby agrees
to use) and (b) with or without legal process and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass to the applicable Pledgor to enter any premises where the
Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other
applicable law. Without limiting the generality of the foregoing, each Pledgor agrees that each Collateral Agent shall have the right (each Collateral Agent acknowledging the terms of the Senior Lender Intercreditor Agreement), subject to the
mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as such
Collateral Agent shall deem appropriate. Each Collateral Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons
who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this Section 5.01, each
Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the
part of any Pledgor, and each Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal that such Pledgor now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted.
A Collateral Agent shall give the applicable Pledgors 10 Business Days’ written notice (which each Pledgor agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of such Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and,
in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as such Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the
portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. Such Collateral Agent shall not be obligated to make any sale of any Collateral if
it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. Such Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral made on
credit or for future delivery, the Collateral so sold may be retained by the Collateral Agents until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agents shall not incur any liability in the event that any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon notice given in accordance with provisions above. At any public (or, to the extent
permitted by law, private) sale made pursuant to this Section 5.01, any Secured Party may bid for or purchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Pledgor (all
such rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in
accordance with Section 5.02 hereof without further accountability to any Pledgor therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; any Collateral Agent shall be
free to carry out such sale pursuant to such agreement and no Pledgor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after such Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, such Collateral Agent may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions.
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Section 5.02. AApportionment,
Application, and Reversal of Payments.
(a) Subject to the provisions of the Senior Lender Intercreditor Agreement (including, without limitation, the provisions of Section 2.01 thereof regarding the application of proceeds of any sale, collection or liquidation of any
Loan Collateral), all payments received by the Term Administrative Agent or by the Term Collateral Agent for application to the Term Obligations (including, without limitation, proceeds of Loan Collateral to be applied to the Term Obligations
pursuant to the Senior Lender Intercreditor Agreement) shall be applied as follows:
First, to pay any fees, indemnities
or expense reimbursements then due to the Agents from the Company under the Term Credit Agreement (other than in respect of Hedging Obligations);
Second, to pay interest and fees then
due from the Company to the Lenders under the Term Credit Agreement, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties (other than in respect of Hedging Obligations);
Third, to pay principal then due from
the Company under the Term Credit Agreement, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties; and
Fourth, to pay any other amounts then
due from the Company under the Term Credit Agreement or any Loan Document (as defined in the Credit Agreement), ratably among the parties entitled thereto in
accordance with the amounts then due to such parties; and
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Fifth, to the payment
in full of Hedging Obligations that constitute Term Obligations.
(b) Subject to the provisions of the Senior Lender Intercreditor Agreement (including, without limitation, the provisions of Section 2.01 thereof regarding the application of proceeds of any sale, collection or liquidation of any
Loan Collateral), all payments received by the Revolving Administrative Agent or the ABL Collateral Agent not relating to principal or interest or fees of specific Revolving Facility Obligations (which shall be applied for such purposes), and all
proceeds of any BorrowersPledgors’ Accounts or any other Collateral and any other payments received
by the Revolving Administrative Agent or the ABL Collateral Agent (including, without limitation, proceeds of Loan Collateral to be applied to the Revolving Facility Obligations pursuant to the Senior Lender Intercreditor Agreement), in each case
for application to the Revolving Facility Obligations, shall be applied, ratably, as follows:
First, to pay any fees, indemnities
or expense reimbursements then due to the Agents from the Borrowers under the Revolving Credit Agreement (other than in respect of Bank Products);
Second, to pay any fees or expense
reimbursements then due to the Lenders under the Revolving Credit Agreement from the Borrowers (other than in respect of Bank Products);
Third, to pay interest due in respect
of the U.S. Revolving Loans;
Fourth, to pay or prepay principal of
the U.S. Swingline Loans and the U.S. Agent Advances;
Fifth, to the payment in full of U.S. Unfunded Advances/Participations under the Revolving Credit Agreement;
Sixth, to pay or prepay principal of
the U.S. Revolving Loans (other than U.S. Unfunded Advances/Participations,
the U.S. Swingline Loans and the U.S. Agent Advances), and unpaid reimbursement obligations in respect of U.S. Letters of Credit (other than U.S. Unfunded Advances/Participations), and to provide any cash collateral required pursuant to Section 2.05(j) of the Revolving Credit Agreement, and all Obligations of the U.S. Loan Parties on account of Noticed Bank Products; and
Seventh, to pay interest due in respect of the Canadian Revolving Loans;
Eighth, to pay or prepay principal of the Canadian Swingline Loans and
the Canadian Agent Advances;
Ninth, to the payment in full of Canadian Unfunded
Advances/Participations under the Revolving Credit Agreement;
Tenth, to pay or prepay principal of the Canadian Revolving Loans
(other than Canadian Unfunded Advances/Participations, the Canadian Swingline Loans and the Canadian Agent Advances), unpaid reimbursement obligations in respect of Canadian Letters of Credit (other than Canadian Unfunded Advances/Participations),
and to provide any cash collateral required pursuant to Section 2.05(j) of the Revolving Credit Agreement, and all Obligations of the Canadian Loan Parties on account of Noticed Bank Products; and Eleventh, to the payment of any other Revolving Facility Obligation due
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to an Agent or any Lender by the Borrowers under the Revolving Credit Agreementa Revolving Facility Secured Party by each Borrower or any of its Subsidiaries (including in respect of Bank Products).
(c) Subject to the provisions of the Senior Lender Intercreditor Agreement, so long as no Event of Default has occurred and is continuing, all Proceeds (as defined in the Senior Lender Intercreditor Agreement) shall be applied as
provided in Section 5.02(b), except that Net Proceeds as defined in the Term Credit Agreement shall be applied as provided in Section 5.02(a).
(d) Notwithstanding anything to the contrary contained in this Agreement, (i) unless so directed by a Borrower, or unless an Event of Default has occurred and is continuing, neither the Revolving Administrative Agent nor any
Revolving Lender shall apply any payment which it receives to any Eurocurrency Revolving Loan except (A) on the expiration date of the Interest Period applicable to any such Eurocurrency Revolving Loan, or (B) in the event, and only to the extent, that there are no outstanding ABR Revolving Loans, and (ii) the
Agents and the Revolving Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all proceeds and payments received to any portion of the Revolving Facility Obligations.
(e) Subject to the terms of the Senior Lender Intercreditor Agreement, each Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement.
Upon any sale of Collateral by any Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by such Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to such Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
(f) If, after receipt of any payment which is applied to the payment of all or any part of any Obligations, an Agent or any Lender is for any reason compelled to surrender such payment or proceeds to any person because such payment
or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible set-off, or a diversion of trust funds, or for any other reason, then the Obligations or part thereof
intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by such Agent or such Lender and the Company (in the case of the Term Obligations) and each
Borrower (in the case of the Revolving Facility Obligations) shall be liable to pay to such Agent and the Lenders, and shall indemnify each Agent and the Lenders and holds the Agents and the Lenders harmless for the amount of such payment or
proceeds surrendered. The provisions of this Section 5.02(f) shall be and remain effective notwithstanding any contrary action which may have been taken by an Agent or any Lender in reliance upon such payment or application of proceeds, and any
such contrary action so taken shall be without prejudice to the Agents’ and the Lenders’ rights under this Agreement and shall be deemed to have been conditioned upon such payment or application of proceeds having become final and irrevocable. The
provisions of this Section 5.02(f) shall survive the termination of this Agreement.
Section 5.03. SSSecurities
Act, Etc. In view of the position of the Pledgors in relation to the Pledged Collateral, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now
or hereafter in effect, or any similar federal statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any
disposition of the Pledged Collateral permitted hereunder. Each Pledgor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Collateral Agents if a Collateral Agent were to attempt to
dispose of all or any part of the Pledged Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Collateral could dispose of the same. Similarly, there may be other legal restrictions
or limitations affecting a Collateral Agent in any attempt to dispose of all or part of the Pledged Collateral under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, any Collateral Agent, in its sole and absolute discretion, (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Collateral
or part thereof shall have been filed under the Federal Securities Laws or, to the extent applicable, Blue Sky or other state securities laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. Each Pledgor
acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, no Collateral Agent shall incur any
responsibility or liability for selling all or any part of the Pledged Collateral at a price that such Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility
that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section 5.03 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the applicable Collateral Agent sells.
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ARTICLE VI
INDEMNITY, SUBROGATION AND SUBORDINATION
INDEMNITY, SUBROGATION AND SUBORDINATION
Section 6.01. Indemnity. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 6.03 hereof), each Borrowerthe Company agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement in respect of any Obligation of such Borrower, such Borrowerthe Company, the Company shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any other Security
Document to satisfy in whole or in part an Obligation owed to any Secured Party by any Borrower, such Borrowerthe
Company, the Company shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.
Section 6.02.Contribution
and Subrogation. Each Guarantor (other than Holdings and the Company) (a “Contributing Guarantor”) agrees (subject to Section 6.03 hereof) that, in the event a payment shall be made by any other
Guarantor (other than Holdings and the Company) hereunder in respect of any Obligation or assets of any other Guarantor (other than Holdings and the BorrowerCompany) shall be sold pursuant to any Security Document to satisfy any Obligation owed to any Secured Party and such other Guarantor (the “Claiming Guarantor”) shall not have been
fully indemnified by the applicable Borrower, as provided in Section 6.01 hereof, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment or the greater of the book value or the fair market
value of such assets, as applicable, in each case multiplied by a fraction of which the numerator shall be the net worth of such Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on
the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 7.16 hereof, the date of the supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming
Guarantor pursuant to this Section 6.02 shall be subrogated to the rights of such Claiming Guarantor under Section 6.01 hereof to the extent of such payment.
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Section 6.03. SSubordination;
Subrogation.
(a) Each Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to such Guarantor by each other Loan Party (the “Subordinated Obligations”) to the Obligations to the extent and in the manner
hereinafter set forth in this Section 6.03:
(i) Prohibited Payments, Etc. Each Guarantor may receive payments from any other Loan Party on account of the Subordinated Obligations. After the occurrence and during the continuance of any Event of
Default, if required by the Revolving Required Lenders or Term Required Lenders, no Guarantor shall demand, accept or take any action to collect any payment on account of the Subordinated Obligations until the Obligations have been paid in full in
cash.
(ii) Prior Payment of Guaranteed Obligations. In any proceeding under the U.S. Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law relating to any
other Loan Party, each Guarantor agrees that the Secured Parties shall be entitled to receive payment in full in cash of all Obligations (including all interest and expenses accruing after the commencement of a proceeding under any U.S. Bankruptcy
Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, whether or not constituting an allowed claim in such proceeding (“Post-Petition Interest”)) before such Guarantor receives payment of any
Subordinated Obligations.
(iii) Turn-Over. After the occurrence and during the continuance of any Event of Default, each Guarantor shall, if a Collateral Agent so requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Secured Parties and deliver such payments to such Collateral Agent (for the benefit of the Secured Parties and subject to the terms of the Senior Lender Intercreditor Agreement) on account of the
Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Guarantor under the other provisions of this
Agreement.
(iv) Collateral Agent Authorization. After the occurrence and during the continuance of any Event of Default, any Collateral Agent is authorized and empowered (but without any obligation to so do), in its
discretion (each Collateral Agent acknowledging the terms of the Senior Lender Intercreditor Agreement), (i) in the name of each Guarantor, to collect and enforce, and to submit claims in respect of, the Subordinated Obligations and to apply any
amounts received thereon to the Obligations (including any and all Post-Petition Interest), and (ii) to require each Guarantor (A) to collect and enforce, and to submit claims in respect of, the Subordinated Obligations and (B) to pay any amounts
received on such obligations to each Collateral Agent for application to the Guaranteed Obligations (including any and all Post-Petition Interest) in each case in accordance with the terms of the Senior Lender Intercreditor Agreement.
(b) Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any Borrower, any other Loan Party or any other insider guarantor that arise from the
existence, payment, performance or enforcement of such Guarantor’s Obligations under or in respect of the guarantee set forth in Article II hereof or any other Loan Document, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Secured Party against such Borrower, any other Loan Party or any other insider guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Borrower, any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under the guarantee set forth in Article II shall have been paid in full in
cash, all Letters of Credit and all Swap Agreements secured hereunder shall have expired or been terminated or cash collateralized (pursuant to arrangements reasonably satisfactory to the Revolving Administrative Agent and the Issuing Banks under
the Revolving Credit Agreement) and the Commitments shall have expired, terminated or shall have been cash collateralized (pursuant to arrangements reasonably satisfactory to the Revolving Administrative Agent and the Issuing Banks under the
Revolving Credit Agreement). If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Obligations and all other amounts payable under
the guarantee set forth in Article II and (b) the latest date of expiration or termination or cash collateralization of all Letters of Credit and all Swap Agreements secured hereunder and termination or expiration of all Commitments, such amount
shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to a Collateral Agent in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the Obligations (in accordance with the terms of the Senior Lender Intercreditor Agreement) and all other amounts payable under the guarantee set forth in Article II, whether
matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any Obligations or other amounts payable under such guarantee thereafter arising. If (i) any Guarantor shall make payment to any Secured
Party of all or any part of the Obligations, (ii) all of the Obligations and all other amounts payable under the guarantee set forth in Article II shall have been paid in full in cash, (iii) the later of (A) the Term Facility Maturity Date and (B)
the Revolving Facility Maturity Date shall have occurred and (iv) all Letters of Credit and all Swap Agreements secured hereunder shall have expired or been terminated, the Administrative Agents will, at such Guarantor’s request and expense,
execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Obligations resulting from such payment
made by such Guarantor pursuant to such guarantee.
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ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
Section 7.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreements. All communications and notices hereunder to
any Subsidiary Party shall be given to it in care of the Company, with such notice to be given as provided in Section 9.01 of the Credit Agreements.
Section 7.02. Security
Interest Absolute. All rights of the Collateral Agents hereunder, the Security Interest in the Article 9 Collateral, the security interest in the Pledged Collateral and all obligations of each Pledgor
hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of either or both Credit Agreements, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit
Agreements, any other Loan Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee,
securing or guaranteeing all or any of the Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the Obligations or this Agreement (other than a defense of
payment or performance).
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Section 7.03. Limitation
By Law. All rights, remedies and powers provided in this Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all the provisions
of this Agreement are intended to be subject to all applicable mandatory provisions of law that may be controlling and to be limited to the extent necessary so that they shall not render this Agreement invalid, unenforceable, in whole or in part,
or not entitled to be recorded, registered or filed under the provisions of any applicable law.
Section 7.04. Binding
Effect; Several Agreement. This Agreement shall become effective as to any party to this Agreement when a counterpart hereof executed on behalf of such party shall have been delivered to each
Administrative Agent and each Collateral Agent and a counterpart hereof shall have been executed on behalf of each Collateral Agent, and thereafter shall be binding upon such party, each Collateral Agent and each of their respective permitted
successors and assigns, and shall inure to the benefit of such party, each Collateral Agent and the other Secured Parties and their respective permitted successors and assigns, except that no party shall
have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or applicable Credit
Agreement. This Agreement shall be construed as a separate agreement with respect to each party and may be amended, modified, supplemented, waived or released with respect to any party without the approval of any other party and without affecting
the obligations of any other party hereunder.
Section 7.05. Successors
and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Pledgor or the Collateral Agents that are contained in this Agreement shall bind and inure to the benefit of their respective permitted successors and assigns; provided that
no Pledgor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of each Collateral Agent and each Administrative Agent. Unless otherwise agreed by each Administrative Agent, the
ABL Collateral Agent hereunder shall at all times be the same person that is the Revolving Administrative Agent under the Revolving Credit Agreement, and the Term Collateral Agent hereunder shall at all times be the same person that is the Term
Administrative Agent under the Term Credit Agreement. Written notice of resignation by an Administrative Agent pursuant either Credit Agreement shall also constitute notice of resignation by such entity as a Collateral Agent under this Agreement,
unless otherwise agreed by the Administrative Agents. Upon the acceptance of any appointment as an Administrative Agent under either Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the applicable Collateral Agent pursuant hereto, except as otherwise agreed by the Administrative Agents.
Section 7.06. Administrative
Agents’ and Collateral Agents’ Fees and Expenses; Indemnification.
(a) The parties hereto agree that the Administrative Agents and the Collateral Agents shall each be entitled to reimbursement of their expenses incurred hereunder as provided in the Section 9.05 of each Credit Agreement.
(b) Without limitation of its indemnification obligations under the other Loan Documents, each Pledgor jointly and severally agrees to indemnify the Administrative Agents, the Collateral Agents and the other “Indemnitees” (as
defined in Section 9.05 of each Credit Agreement) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a result of, (i) the execution, delivery or performance of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and other transactions contemplated hereby, (ii) the use of proceeds of the Loans or the use of any Letter of Credit or
(iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, or to the Collateral, whether or not any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.
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(c) Any such amounts payable as provided hereunder shall be additional Obligations secured hereby and by the other Security Documents. The provisions of this Section 7.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf of any Administrative Agent or any other Secured Party. All amounts due under this Section 7.06 shall be payable on written demand therefor, accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other amount requested.
Section 7.07. Collateral
Agents Appointed Attorneys-in-Fact. Each Pledgor hereby appoints each Collateral Agent an attorney-in-fact of such Pledgor for the purpose of carrying out the provisions of this Agreement, and taking any
action and executing any instrument that such Collateral Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Each Collateral Agent shall have the right (each
Collateral Agent acknowledging the terms of the Senior Lender Intercreditor Agreement), upon the occurrence and during the continuance of any Event of Default, with full power of substitution either in such Collateral Agent’s name or in the name of
such Pledgor, (a) to receive, endorse, assign or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof, (b) to demand, collect, receive payment of, give
receipt for and give discharges and releases of all or any of the Collateral; (c) to ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due or to become due under and by virtue of any Collateral; (d) to sign the
name of any Pledgor on any invoice or bill of lading relating to any of the Collateral; (e) to send verifications of Accounts to any Account Debtor; (f) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (g) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating
to all or any of the Collateral; (h) to notify, or to require any Pledgor to notify, Account Debtors to make payment directly to any Collateral Agent or to either Administrative Agent; and (i) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner
of the Collateral for all purposes; provided, that nothing herein contained shall be construed as requiring or obligating any Collateral Agent to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by such Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Collateral Agents and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors,
employees or agents shall be responsible to any Pledgor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.
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Section 7.08. GGOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 7.09. Waivers;
Amendment.
(a) No failure or delay by the Collateral Agents, the Administrative Agents, any Issuing Bank or any Lender in exercising any right, power or remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right,
power or remedy. The rights, powers and remedies of the Administrative Agents, the Collateral Agents, any Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights, powers or
remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.09,
and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be
construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agents, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time. No notice or demand on any
Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agents and the Loan Party or Loan Parties with respect to
which such waiver, amendment or modification is to apply, subject to any consent required in accordance with the terms of Section 9.08 of the Credit Agreements. Anything contained herein or in any of the Credit Agreements or other Loan Documents
to the contrary notwithstanding, (i) any such waiver, amendment or modification that affects the Term Documents and/or the Term Obligations, but does not adversely affect the rights and interests of the Revolving Lenders under the Revolving
Documents, may be given or agreed by the Collateral Agents without the consent of the Revolving Administrative Agent or the Revolving Lenders, but subject to any consents required under the Term Credit Agreement, and (ii) any such waiver, amendment
or modification that affects the Revolving Documents and/or the Revolving Facility Obligations, but does not adversely affect the rights and interests of the Term Lenders under the Term Documents, may be given or agreed by the Collateral Agents
without the consent of the Term Administrative Agent or the Term Lenders, but subject to any consents required under the Revolving Credit Agreement.
Section 7.10. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.10.
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Section 7.11. SSeverability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 7.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract, and shall become effective as provided in
Section 7.04 hereof. Delivery of an executed counterpart to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed original.
Section 7.13. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Section 7.14. Jurisdiction;
Consent to Service of Process.
(a) Each party to this Agreement hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agents, the Collateral Agents, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Pledgor, or its properties, in the courts of any
jurisdiction.
(b) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement or any other Loan Document in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
Section 7.15. Termination or Release.
(a) This Agreement, the guarantees made herein, the pledges made herein, the Security Interest and all other security interests granted hereby shall terminate when all the Loan Document Obligations (other than contingent or
unliquidated obligations or liabilities with respect to which no claim has been asserted) have been paid in full in cash or immediately available funds and the Lenders have no further commitment to lend under either Credit Agreement, the Revolving
L/C Exposure has been reduced to zero (or cash-collateralized or supported by back-to-back letter of credit in form and substance and from an issuing bank satisfactory to the Revolving Administrative Agent and the Issuing Banks under the Revolving
Credit Agreement) and each Issuing Bank has no further obligations to issue Letters of Credit under the Revolving Credit Agreement.
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Subsidiary Party shall automatically be released from its obligations hereunder and the security interests in the Collateral of such Subsidiary Party shall be
automatically released upon the consummation of any transaction permitted by each Credit Agreement, as a result of which such Subsidiary Party ceases to be a Subsidiary of the Company or otherwise ceases to be a Guarantor; provided that the Term Required Lenders and/or the Revolving Required Lenders shall have consented to such transaction (to the extent such consents are required by the Credit Agreements) and the terms of such consent did not
provide otherwise.
(b) Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under each Credit Agreement to any person that is not a Pledgor, or upon the effectiveness of any written consent to the release of the security
interest granted hereby in any Collateral pursuant to the respective terms of Section 9.08 of each Credit Agreement, the security interest in such Collateral shall be automatically released.
(c) In connection with any termination or release pursuant to paragraph (a), (b) or (c) of this Section 7.15, the Collateral Agents shall execute and deliver to any Pledgor, at such Pledgor’s expense, all documents that such Pledgor
shall reasonably request to evidence such termination or release; provided, that the Collateral Agents shall not be required to take any action under this Section 7.15(d) unless such Pledgor shall have
delivered to the Collateral Agents together with such request, which may be incorporated into such request, (i) a reasonably detailed description of the Collateral, which in any event shall be sufficient to effect the appropriate termination or
release without affecting any other Collateral, and (ii) a certificate of a Responsible Officer of the Company or such Pledgor certifying that the transaction giving rise to such termination or release is permitted by each Credit Agreement and was
consummated in compliance with the Loan Documents. Any execution and delivery of documents pursuant to this Section 7.15 shall be without recourse to or warranty by any Collateral Agent.
Section 7.16. Additional
Subsidiaries. Upon execution and delivery by the Collateral Agents and any Subsidiary that is required to become a party hereto by Section 5.10 of either Credit Agreement of an instrument in the form of
Exhibit A hereto, such subsidiary shall become a Subsidiary Party hereunder with the same force and effect as if originally named as a Subsidiary Party herein. The execution and delivery of any such instrument shall not require the consent
of any other party to this Agreement. The rights and obligations of each party to this Agreement shall remain in full force and effect notwithstanding the addition of any new party to this Agreement.
Section 7.17. RRight
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each Issuing Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law,
to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Issuing Bank to or for the credit or the account of any party to
this Agreement against any of and all the obligations of such party now or hereafter existing under this Agreement owed to such Lender or such Issuing Bank, irrespective of whether or not such Lender or such Issuing Bank shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section 7.17 are in addition to other rights and remedies (including other rights of setoff) that such Lender or such Issuing Bank may have.
Section 7.18. Intercreditor
Agreements. Notwithstanding anything to the contrary contained herein, the terms of this Agreement shall be subject to the terms of (a) the Senior Lender Intercreditor Agreement and, (b) the OriginalSecond Priority Intercreditor Agreement and (c) the Senior Fixed Collateral Intercreditor Agreement, and in the event of any inconsistency between any provision herein and therein, the terms of the
applicable Intercreditor Agreement shall govern. In accordance with the provisions of the Credit Agreements and the Senior Lender Intercreditor Agreement, each Collateral Agent is acting herein as Collateral Agent for the applicable Secured
Parties under the applicable Credit Agreement. Anything contained herein or in any of the other Loan Documents to the contrary notwithstanding, neither Collateral Agent shall be required to take any action under this Agreement that would result in
a breach by such Collateral Agent of its obligations under any other Loan Document.
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Section 7.19. Limit of PledgeUntil the
consummation of the Merger, the amount of Indebtedness secured by any Liens granted pursuant to this Agreement by Berry and each of the Subsidiary Parties that are subsidiaries of Berry shall be limited to the amount of Indebtedness that can be
secured by Liens pursuant to clause 6(B)(y) of the definition of “Permitted Liens” under the Second Lien Notes Indenture and by Section 2.07(b) above.
Section 7.20. Priority. Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the Term Loan Obligations (as defined in the Senior Lender Intercreditor Agreement) granted on the
Collateral or of any Liens securing the Revolving Facility Obligations (as defined in the Senior Lender Intercreditor Agreement) granted on the Collateral and notwithstanding any provision of any UCC, or any other applicable law or the Revolving Facility Documents or the Term Loan Documents or any defect or
deficiencies in, or failure to perfect, the Liens securing the Revolving Facility Obligations or the Term Loan Obligations or any other circumstance whatsoever, the ABL Collateral Agent, on behalf of itself and the Revolving Facility Secured
Parties and the Term Collateral Agent, on behalf of itself and the Term Loan Secured Parties each hereby agrees that the Liens of each Collateral Agent shall be of equalhave the priority described in the Senior Lender Intercreditor Agreement,.
[Signature Pages Intentionally Omitted]
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Exhibit A
to Guarantee and
Collateral Agreement
to Guarantee and
Collateral Agreement
SUPPLEMENT NO. _____ dated as of ______________ (this “Supplement”), to the SECOND AMENDED AND RESTATED FIRST LIEN GUARANTEE AND COLLATERAL
AGREEMENT, dated and effective as of April , 2007 (the “Guarantee and Collateral Agreement”), among BERRY PLASTICS GROUP, INC. (“Berry Holdings”), which immediately prior to Closing Date was merged with Covalence Specialty Materials
Holdings Corp. (“Covalence Holdings”), with Covalence Holdings surviving such merger and being renamed Berry Plastics Group, Inc. (the surviving entity, “Holdings”), COVALENCE SPECIALTY MATERIALS CORP. (“Covalence”), which on the
Closing Date shall be merged with and into Berry Plastics Holding Corporation (“Berry”), with Berry surviving such merger (the “Company”), each Subsidiary of the Company identified herein as a party (each, a “Subsidiary Party”),
and BANK OF AMERICA, N.A., as collateral agent for the Revolving Facility Secured Parties (in such capacity, the “ABL Collateral Agent”) and CREDIT SUISSE, CAYMAN ISLANDS BRANCH as collateral agent for the Term Loan Secured Parties (in such
capacity, the “Term Collateral Agent”).
A. Reference is made to (i) that certain Second Amended and Restated Credit Agreement, dated as of the date hereof,April 3, 2017, among Holdings, the Company, the lenders party thereto from time to time (the “Term Lenders”), and Credit Suisse, Cayman Islands Branch, as administrative agent for the lenders
named therein (in such capacity, the “Term Administrative Agent”) and collateral agent for the lenders named therein (as the same may be amended, restated, supplemented, waived or otherwise modified from time to time, the “Term Credit
Agreement”), and (ii) that certain Third Amended and Restated Revolving Credit Agreement, dated as of the
date hereof,May 1, 2019, among Holdings, the Company, the Canadian
Borrower, the Subsidiary BorrowersLoan Parties (as defined therein), the lenders
party thereto from time to time (the “Revolving Lenders”), and Bank of America, N.A., as administrative agent for the lenders named therein (in such capacity, the “Revolving Administrative Agent,” and together with the Term
Administrative Agent, the Administrative Agents) and collateral agent for the lenders named therein (as the same may be amended, restated, supplemented, waived or otherwise modified from time to time, the “Revolving Credit Agreement” and,
together with the Term Credit Agreement, the “Credit Agreements”);
B. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Guarantee and Collateral Agreement.
C. The Pledgors have entered into the Guarantee and Collateral Agreement in order to induce the Lenders to make Loans and each Issuing Bank to issue Letters of Credit. Section 7.16 of the Guarantee and Collateral Agreement
provides that additional Subsidiaries may become Subsidiary Parties under the Guarantee and Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Subsidiary”) is
executing this Supplement in accordance with the requirements of the Credit Agreements to become a Subsidiary Party under the Guarantee and Collateral Agreement in order to induce the Lenders to make additional Loans and each Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agents and the New Subsidiary agree as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee and Collateral Agreement, the New Subsidiary by its signature below becomes a Subsidiary
Party, a Guarantor and a Pledgor (and, if the New Subsidiary is a Borrower under the Revolving Credit Agreement, a Borrower and a Subsidiary Borrower) under the Guarantee and Collateral
Agreement with the same force and effect as if originally named therein as a Subsidiary Party, a Guarantor and a Pledgor (and, if applicable, a Borrower and a Subsidiary Borrower), and the
New Subsidiary hereby (a) agrees to all the terms and provisions of the Guarantee and Collateral Agreement applicable to it as a Subsidiary Party, a Guarantor and a Pledgor (and, if applicable, a Borrower
and a Subsidiary Borrower) thereunder, and (b) represents and warrants that the representations and warranties made by it as a Guarantor and a Pledgor (and, if applicable, a Borrower
and a Subsidiary Borrower) thereunder are true and correct, in all material respects, on and as of the date hereof. In furtherance of the foregoing, the New Subsidiary, as security for
the payment and performance in full of the Obligations (as defined in the Guarantee and Collateral Agreement), does hereby create and grant to each of (A) the ABL
Collateral Agent and its successors and permitted assigns for the benefit of the Secured PartiesRevolving Facility
Secured Parties, as security for the payment and performance in full of the Revolving
Facility Obligations (as defined in the Guarantee and Collateral Agreement), and (B) the Term Collateral Agent and its successors and permitted
assigns for the benefit of the Term Loan Secured Parties, as security for the payment and
performance in full of the Term Obligations (as defined in the Guarantee and Collateral Agreement), a security interest in and Lien on all the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the
Guarantee and Collateral Agreement) of the New Subsidiary. Each reference to a “Subsidiary Party” or a “Guarantor” a “Pledgor” in the Guarantee and Collateral Agreement (and, if applicable, a “Borrower”
or a “Subsidiary Borrower”) shall be deemed to include the New Subsidiary. The Guarantee and Collateral Agreement is hereby incorporated herein by reference.
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SECTION 2. The New Subsidiary represents and warrants to each Collateral Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair
dealing.
SECTION 3. This Supplement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken
together shall constitute but one contract. This Supplement shall become effective when (a) each Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary, and (b) each Collateral Agent has
executed a counterpart hereof.
SECTION 4. The New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule
of the location of any and all Article 9 Collateral of the New Subsidiary, (b) set forth on Schedule II attached hereto is a true and correct schedule of all the Pledged Securities of the New Subsidiary, and (c) set forth under its signature
hereto, is the true and correct legal name of the New Subsidiary, its jurisdiction of formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Guarantee and Collateral Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 7. In the event any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Guarantee and Collateral Agreement shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Guarantee and Collateral
Agreement.
SECTION 9. The New Subsidiary agrees to reimburse each Collateral Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, disbursements and other charges of counsel for such Collateral Agent.
IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agents have duly executed this Supplement to the Guarantee and Collateral Agreement as of
the day and year first above written.
[NAME OF NEW SUBSIDIARY]
By:
Name:
Title:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive Office:
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BANK OF AMERICA, N.A.,
as ABL Collateral Agent
as ABL Collateral Agent
By:
Name:
Title:
Title:
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CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Term Collateral Agent
as Term Collateral Agent
By:
Name:
Title:
Title:
By:
Name:
Title:
Title:
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Schedule I
to Supplement No. ____to the
Guarantee and
Collateral Agreement
to Supplement No. ____to the
Guarantee and
Collateral Agreement
LOCATION OF ARTICLE 9 COLLATERAL
|
Description
|
Location
|
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Schedule II
to Supplement No. ____ to the
Guarantee and
Collateral Agreement
to Supplement No. ____ to the
Guarantee and
Collateral Agreement
Pledged Securities of the New Subsidiary
EQUITY INTERESTS
EQUITY INTERESTS
|
Number of Issuer
Certificate |
Registered Owner |
Number and Class of Equity Interest
|
Percentage of
Equity Interests |
DEBT SECURITIES
|
Issuer
|
Principal Amount
|
Date of Note
|
Maturity Date
|
OTHER PROPERTY
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