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Reliant Pharmaceuticals, Inc.
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S-1/A
Sep 14, 5:21 PM ET
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Reliant Pharmaceuticals, Inc. S-1/A
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Contents
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SECTION 1. DEFINITIONS AND INTERPRETATION
(i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) other than Specified Holders (a) prior to an IPO shall have acquired beneficial ownership of 50% or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of Company, (b) after an IPO shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of Company or (c) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Company;
(ii) prior to an IPO, the Specified Holders fail to hold at least 25% of the Capital Stock of Company; and
(iii) after an IPO the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of Company cease to be occupied by Persons who either (a) were members of the board of directors of Company on the effective date of the IPO or (b) were nominated for election by the board of directors of Company, a majority of whom were directors on the effective date of the IPO or whose election or nomination for election was previously approved by a majority of such director.
SECTION 2. LOANS
(a) Initial Term Loan Commitments. Subject to the terms and conditions hereof, each Lender severally agrees to make, on the Closing Date, an Initial Term Loan to Company in an amount equal to such Lender’s Initial Term Loan Commitment, such that the total Initial Term Loans of all Lenders made on the Closing Date shall be $170,000,000. The Company may make only one borrowing under the Initial Term Loan Commitments, which shall be on the Closing Date. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Initial Term Loans shall be paid in full no later than the Maturity Date. Each Lender’s Initial Term Loan Commitment shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Initial Term Loan Commitment on such date.
(b) Borrowing Mechanics for Initial Term Loans.
(i) Company shall deliver to Administrative Agent a fully executed Funding Notice not later than 1:00 p.m. (New York City time) on the Closing Date. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing.
(ii) Upon satisfaction or waiver of the conditions precedent specified in Section 3.1, each Lender shall make its Initial Term Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the Closing Date, by wire transfer of same day funds in Dollars, at the Principal Office. Upon satisfaction or waiver of the conditions precedent
specified in Section 3.1, in accordance with the provisions set forth herein, Administrative Agent shall make the proceeds of the Initial term Loans available to Company on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Initial Term Loans received by Administrative Agent from Lenders to be credited to the account of Company as designated in the Funding Notice by Company.
(a) Delayed Draw Term Loan Commitments. Subject to the terms and conditions hereof, each Lender severally agrees to make up to two Delayed Draw Term Loans to Company, in each case in an amount up to the remaining amount of such Lender’s Delayed Draw Term Loan Commitment at the time of the making of the applicable Delayed Draw Term Loan; provided that the aggregate principal amount of Delayed Draw Term Loans drawn on each applicable Credit Date shall not be less than $5,000,000 (unless the remaining Delayed Draw Term Loan Commitment is less than $5,000,000, in which case such drawing shall be the remaining amount of such commitment). Any amount borrowed under this Section 2.2(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Delayed Draw Term Loans shall be paid in full no later than the Maturity Date. Each Lender’s Delayed Draw Term Loan Commitment shall be reduced upon the making of each Delayed Draw Term Loan by an amount equal to the amount of such Delayed Draw Term Loan and the unused Delayed Draw Term Loan Commitments shall terminate immediately and without further action at 5:00 p.m. (New York City time) on the Delayed Draw Expiration Date. For the avoidance of doubt, the only conditions applicable to the making of a Delayed Draw Term Loan are those specified in Section 3.2.; provided that the conditions in 3.1 have been satisfied on the Closing Date and the applicable notices given under this Section 2.2.
(b) Borrowing Mechanics for Delayed Draw Term Loans.
(i) Whenever Company desires that Lenders make Delayed Draw Term Loans, Company shall deliver to Administrative Agent a telephonic notice or email notice promptly followed by a fully executed Funding Notice no later than 12:00 noon (New York City time) at least three Business Days in advance of the proposed Credit Date in the case of a Eurodollar Rate Loan, and at least one Business Day in advance of the proposed Credit Date in the case of a Base Rate Loan. Except as otherwise provided herein, a Funding Notice for a Delayed Draw Term Loan that is a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Company shall be bound to make a borrowing in accordance therewith.
(ii) Notice of receipt of each Funding Notice in respect of Delayed Draw Term Loans, together with the amount of each Lender’s Pro Rata Share thereof, together with the interest rate, shall be provided by Administrative Agent to each applicable Lender by telefacsimile with reasonable promptness, but (provided Administrative Agent shall have received such notice by 12:00 noon (New York City time)) not later than 4:00 p.m. (New York City time) on the same day as Administrative Agent’s receipt of such Notice from Company.
(iii) Upon satisfaction or waiver of the conditions precedent specified in Section 3.2, each Lender shall make the amount of its Delayed Draw Term Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at the Principal Office designated by Administrative Agent. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified in Section 3.2, Administrative Agent shall make the proceeds of such Delayed Draw Term Loans available to Company on the applicable Credit Date by causing an
amount of same day funds in Dollars equal to the proceeds of all such Delayed Draw Term Loans received by Administrative Agent from Lenders to be credited to the account of Company at the Principal Office designated by Administrative Agent or such other account as may be designated in writing to Administrative Agent by Company.
(c) The Company may at any time terminate, or from time to time reduce, the Delayed Draw Term Loan Commitments, provided that each reduction of the Delayed Draw Term Loan Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000.
(a) Pro Rata Shares. All Loans shall be made, and all participations purchased under Section 2.17, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender and Administrative Agent shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested under this Agreement or purchase a participation required hereby under Section 2.17 nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested under this Agreement or purchase a participation required hereby under Section 2.17.
(b) Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the Closing Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on the Closing Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on the Closing Date or Administrative Agent may, in its sole discretion make available to Company a corresponding amount on the Closing Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender but Administrative Agent has made such amount available to Company, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from the Closing Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. If Administrative Agent has made such amount available to Company but such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Company and Company shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from the Closing Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans. Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that Company may have against any Lender as a result of any default by such Lender hereunder.
(a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Company to such Lender, including the amounts of the Loans made by it, accrued interest and fees thereon and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Company, absent manifest error; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitment or Company’s Obligations in respect of any applicable Loans; and provided, further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register (if applicable) shall govern.
(b) Register. Administrative Agent shall maintain at the Principal Office a register for the recordation of the names and addresses of Lenders and the Commitments and Loans of each Lender from time to time (the “Register”). The Register shall be available for inspection by Company or any Lender (with respect to an entry relating to such Lender’s Loan) at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record in the Register the Commitments and the Loans, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Company and each Lender, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitment or Company’s Obligations in respect of any Loan. Company hereby designates GSCP to serve as Company’s agent solely for purposes of maintaining the Register as provided in this Section 2.7, and Company hereby agrees that, to the extent GSCP serves in such capacity, GSCP and its Related Parties shall constitute “Indemnitees” for purposes of this Agreement.
(c) Notes. If so requested by any Lender by written notice to Company (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Company’s receipt of such notice) a Note or Notes to evidence such Lender’s Delayed Draw Term Loans or Initial Term Loans, as the case may be.
(a) Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
(i) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Margin; or
(ii) if a Base Rate Loan, at the Base Rate plus the Applicable Margin.
(b) The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any Eurodollar Rate Loan, shall be selected by Company and notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be. If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with
the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
(c) In the event Company fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then current Interest Period (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the event Company fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, Company shall be deemed to have selected an Interest Period of one month. Prior to 12:00 noon (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Company and each Lender.
(d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate Loans on the basis of a 365 day or 366 day year, as the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a 360 day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan shall be payable in arrears on and to (i) each Interest Payment Date applicable to that Loan; (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity, including final maturity; provided, however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the next Interest Payment Date.
(a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred and then be continuing, Company shall have the option:
(i) to convert on the last day of an Interest Period all of any Loan equal to $5,000,000 and integral multiples of $5,000,000 in excess of that amount from Base Rate Loans to Eurodollar Rate Loans, or vice versa; provided, a Eurodollar Rate Loan may only be converted on the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Company shall pay all amounts due under Section 2.18 in connection with any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of $5,000,000 in excess of that amount as a Eurodollar Rate Loan.
(b) Company shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Conversion/Continuation Date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed Conversion/Continuation Date (in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable and Company shall be bound to effect a conversion or continuation in accordance therewith. Any Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent. In lieu of delivering a Notice, Company may give Administrative Agent telephonic notice by the required time prior to any conversion/continuation; provided, each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or before the applicable date of continuation or conversion. Neither Administrative Agent nor any Lender shall incur any liability to Company in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of Company or for otherwise acting in good faith.
(a) Company agrees to pay to Agents such fees and expenses in the amounts and at the times separately agreed upon in writing.
(b) Company agrees to pay to the Administrative Agent for the account of each Lender holding a Delayed Draw Term Loan Commitment, a commitment fee, which shall accrue at a rate equal to one half of the Applicable Margin in respect of Eurodollar Rate Loans, on the average daily unused amount of the Delayed Draw Term Loan Commitment of such Lender during the period from and including the Closing Date to but excluding the earlier of the termination of the Delayed Draw Term Loan Commitment and the Delayed Draw Expiration Date (calculated on the basis of a 365-day year and the actual number of days elapsed), payable quarterly in arrears on the last Business Day of March, June and/or September, and on the date on which such Delayed Draw Term Loan Commitments terminate, commencing on the first such date to occur after the date hereof.
(a) Scheduled Installments. The principal amounts of the Loans shall be repaid in consecutive quarterly installments (each, an “Installment”) on the last Business Day of each Fiscal Quarter (each, an “Installment Date”), commencing June 30, 2007. Each Installment shall be equal to 0.25% (1% per annum) of the outstanding principal balance of the Loans on the Closing Date. Each Installment of Delayed Draw Term Loans shall be equal to 0.25% (1% per annum) of the outstanding principal balance of the applicable Delayed Draw Term Loan on the date such Delayed Draw Term Loan is made. Interest shall be payable on all principal paid pursuant to this Section 2.12(a), as calculated pursuant to Section 2.8.
(b) Notwithstanding the foregoing, the Loans together with all other amounts owed hereunder, shall, in any event, be paid in full no later than the Maturity Date.
(a) Voluntary Prepayments.
(i) Any time and from time to time:
(1) with respect to Base Rate Loans, Company may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount; and
(2) with respect to Eurodollar Rate Loans, Company may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.
(ii) All such prepayments shall be made:
(1) upon not less than one Business Day’s prior written or telephonic notice in the case of Base Rate Loans; and
(2) upon not less than three Business Days’ prior written or telephonic notice in the case of Eurodollar Rate Loans, unless Company compensates each Lender pursuant to Section 2.18(c) for any losses, expenses or liabilities resulting from making such prepayments on shorter notice or unless as provided in clause (iv) below,
(iii) Not less than three Business Days prior to making any prepayment of any Eurodollar Rate Loans that would result in breakage costs pursuant to Section 2.18(c), Company may request in writing to Administrative Agent that Administrative Agent hold such funds sufficient to pay the principal amount of such prepayment in escrow in an interest-bearing account until the earliest such time that the Eurodollar Rate Loans can be repaid without the
incurrence of such breakage costs. Pending the Administrative Agent’s application of funds to make such prepayment, such funds shall be held as part of the Collateral. Any interest earned on amounts held in escrow shall be credited to and delivered to Company. The Administrative Agent shall give Company and each lender three (3) Business Days’ prior written or telephonic notice of the date on which such funds will be applied to prepayments of the Loans. In accordance with Sections 2.16(a) and (b), Company shall pay interest on the amount so prepaid, until such escrow funds are applied to the applicable Eurodollar Rate Loan.
(b) [Reserved].
(c) [Reserved].
(d) Prepayment Premium. In the event that for any reason any Loans are prepaid in whole or in part prior to the first anniversary of the Closing Date with the proceeds of new term loans having interest rate spreads that are lower than the Applicable Margin, except as provided in Sections 2.14 and 2.23, Company shall pay to Lenders having Loan Exposure a call premium equal to one percent of the principal amount prepaid. Prepayments after the first anniversary of the Closing Date through the Maturity Date shall not have any call premiums.
(a) Asset Sales. No later than the second Business Day following the date of receipt by Company or any of its Subsidiaries of any Net Asset Sale Proceeds, Company shall prepay the Loans in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Event of Default shall have occurred and be continuing, Company shall have the option, directly or through one or more of its Guarantor Subsidiaries, to commit to invest, within one year after receipt thereof (and, if so committed, to invest within 18 months after receipt thereof), any Net Asset Sale Proceeds; provided, further, that if aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $2,000,000 for any Fiscal Year, Company shall have no obligation to prepay the Loans or reinvest the proceeds thereof.
(b) Insurance/Condemnation Proceeds. No later than the second Business Day following the date of receipt by Company or any of its Subsidiaries, or Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds, Company shall prepay the Loans in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, so long as no Event of Default shall have occurred and be continuing, Company shall have the option, directly or through one or more of its Subsidiaries, to commit to invest, within one year after receipt thereof (and, if so committed, to invest within 18 months after receipt thereof), any Net Insurance/Condemnation Proceeds, up to an aggregate amount for all such invested Net Insurance/Condemnation Proceeds after the Closing Date not to exceed $35,000,000, which investment may include the repair, restoration or replacement of the applicable assets thereof.
(c) Issuance of Equity Securities. Company shall prepay the Loans no later than the second Business Day following receipt by Company or any of its Subsidiaries of all Cash proceeds (net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses) received from a capital contribution to, or the issuance of any Capital Stock, except for (i) equity securities issued in an IPO; (ii) Capital Stock issued in connection with warrants outstanding as of December 31, 2006 (as specified on Schedule 2.14(c)) of Company or any of its Subsidiaries; and (iii) Capital Stock or options issued pursuant to any employee stock, arrangement, stock option compensation plan, employment agreement or similar such plans.
(d) Issuance of Debt. On the date of receipt by Company or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of Company or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1), Company shall prepay the Loans in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.
(e) Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2007), Company shall, no later than 105 days after the end of such Fiscal Year, prepay the Loans in an aggregate amount equal to (i) 50% of such Consolidated Excess Cash Flow minus (ii) (x) the aggregate principal amount of voluntary prepayments of Loans made during such Fiscal Year and (y) 50% of the aggregate principal amount of mandatory prepayments of Loans pursuant to the other provisions of this Section 2.14, to the extent the event or transaction giving rise to such mandatory prepayment resulted in an increase to Consolidated Excess Cash Flow during such Fiscal Year; provided, that if, as of the last day of such Fiscal Year, the Leverage Ratio shall be less than 2.0 to 1.0, Company shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 25% of such Consolidated Excess Cash Flow minus (ii) (x) the aggregate principal amount of voluntary prepayments of Loans made during such Fiscal Year and (y) 25% of the aggregate principal amount of mandatory prepayments of Loans pursuant to the other provisions of this Section 2.14, to the extent the event or transaction giving rise to such mandatory prepayment resulted in an increase to Consolidated Excess Cash Flow during such Fiscal Year and provided further, that Company shall not be required to make any prepayments pursuant to this Section 2.14(e) in respect of such Fiscal Year’s Consolidated Excess Cash Flow if, as of the last day of such Fiscal Year, the Leverage Ratio is less than 1.0 to 1.0.
(f) Prepayment Certificate. Not less than one (1) Business Day prior to the date of any prepayment of the Loans pursuant to Sections 2.14(a) through 2.14(d) , Company shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds. In the event that Company shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Company shall promptly make an additional prepayment of the Loans in the amount of such excess, and Company shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.
(a) Application of Voluntary Prepayments. Any prepayment of any Loan pursuant to Section 2.13 shall be applied as specified by Company in the applicable notice of prepayment; provided, in the event Company fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied in the manner set forth in Section 2.15(b).
(b) Application of Mandatory Prepayments. Any amount required to be paid pursuant to Sections 2.14(a) through 2.14(e) shall be applied to prepay Loans and reduce Commitments, if any, of the Lenders in accordance with their respective Pro Rata Shares.
(c) Waivable Mandatory Prepayment. Anything contained herein to the contrary notwithstanding, so long as any Loans are outstanding, in the event Company is required to make a mandatory prepayment (a “Waivable Prepayment”) of the Loans pursuant to Section 2.14, then Company shall, within two Business Days of knowledge of such Waivable Prepayment, notify Administrative Agent in writing of the amount of such prepayment, and Administrative Agent shall promptly thereafter notify each Lender holding an outstanding Loan of the amount of such Lender’s Pro
Rata Share of such Waivable Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice, or telephonic notice followed within one Business Day with written notice, to Company and Administrative Agent of its election to do so, on or before noon New York time on the second Business Day following receipt of Company’s notice (the “Required Prepayment Date”) (it being understood that any Lender that does not notify Company and Administrative Agent of its election to exercise such option by noon New York time on the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, Company shall pay to Administrative Agent an amount equal to that portion of the Waivable Prepayment payable to those Lenders that have elected not to exercise such option to prepay the Loans of such Lenders in accordance with Section 2.15(b). Such portion of the Waivable Prepayment not payable due to the election by any Lender to waive rights to the Waivable Prepayment shall be offered to any Lender, who shall have the right to receive such Lender’s pro rata share (as between those non-waiving Lenders) of any additional amounts of the Waivable Prepayment waived by other Lenders; provided, however, that no Lender shall receive or be paid any amount in excess of such Lender’s Loan Exposure.
(d) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans. Any prepayment of Loans shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner that minimizes the amount of any payments required to be made by Company pursuant to Section 2.18(c).
(a) All payments by Company of principal of the Loans, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 2:00 p.m. (New York City time) on the date due at the Principal Office for the account of Lenders.
(b) All payments in respect of the principal amount of any Eurodollar Rate Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid. All payments in respect of the principal amount of any Base Rate Loan shall be payable on the next Interest Payment Date, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.
(c) Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Administrative Agent (other than such fees, costs and expense payable to any Agent, and such payments shall be first applied to such fees, cost and expenses payable to such Agent).
(d) Notwithstanding the foregoing provisions hereof, if any Conversion Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(e) [Reserved].
(f) Company hereby authorizes Administrative Agent to charge Company’s accounts (if any) with Administrative Agent in order to cause timely payment to be made to Administrative Agent
of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in its accounts for that purpose).
(g) All payments received by Administrative Agent after 2:00 p.m. shall be deemed received on the next Business Day and any applicable interest shall apply, and such payment shall be considered a nonconforming payment. Any nonconforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a nonconforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from the date such amount was due and payable until the date such amount is paid in full.
(h) If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by Agents hereunder in respect of any of the Obligations, shall be applied first, to the payment of all reasonable costs and expenses of such sale, collection or other realization, including reasonable compensation to the Administrative Agent and Collateral Agent and their Related Parties, and all other reasonable expenses, liabilities and advances made or incurred by the Administrative Agent and the Collateral Agent and their Related Parties in connection therewith, and all amounts for which the Collateral Agent and the Administrative Agent and their Related Parties are entitled to indemnification hereunder (in their capacity as the Collateral Agent or Administrative Agent or their Related Parties thereof, as applicable, and not as a Lender) and all advances made by the Collateral Agent and the Administrative Agent hereunder for the account of the applicable Grantor, and to the payment of all costs and expenses paid or incurred by the Collateral Agent and Administrative Agent and their Related Parties in connection with the exercise of any right or remedy hereunder or under the Credit Agreement, all in accordance with the terms hereof or thereof; second, to the extent of any excess of such proceeds, to the payment of all other Obligations for the ratable benefit of the Lenders; and third, to the extent of any excess of such proceeds, to the payment to, or upon the order of, Company or Guarantor Subsidiary or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
(a) Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have reasonably determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice to Company and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies Company and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Company with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Company.
(b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date any Lender shall have reasonably determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Company and Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by facsimile or by telephone confirmed in writing) to Company and Administrative Agent of such determination (which notice Administrative Agent shall promptly notify each other Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Company pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the next Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate Loan then being requested by Company pursuant to a Funding Notice or a Conversion/Continuation Notice, Company shall have the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice (by facsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly notify each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.18(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms hereof.
(c) Compensation for Breakage or Non Commencement of Interest Periods. Company shall compensate each Lender, upon written request by such Lender (which request shall set
forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by Company, or (iv) any prepayment of any of its Eurodollar Rate Loans is made on less than three Business Days’ notice pursuant to Section 2.13(a)(iii)(2) .
(d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, however, each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19.
(a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section 2.20 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall reasonably determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law): subjects such Lender (or its applicable lending office) to any additional Tax (other than any Tax on the net income of such Lender) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London
interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Company shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.19(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(b) Capital Adequacy Adjustment. In the event that any Lender shall have reasonably determined that the adoption, effectiveness, phase-in or applicability after the Closing Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its applicable lending office) with any guideline, request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or other obligations hereunder with respect to the Loans to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy), then from time to time, within five Business Days after receipt by Company from such Lender of the statement referred to in the next sentence, Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after-tax basis for such reduction. Such Lender shall deliver to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(a) Payments to Be Free and Clear. All sums payable by any Credit Party hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax (other than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or assessed by or within the United States of America or any political subdivision in or of the United States of America or any other jurisdiction from or to which a payment is made by or on behalf of any Credit Party or by any federation or organization of which the United States of America or any such jurisdiction is a member at the time of payment. In addition, each Credit Party shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(b) Withholding of Taxes. If any Credit Party is required by law to make any deduction or withholding on account of any such Tax from any sum paid or payable by any Credit Party to Administrative Agent or any Lender under any of the Credit Documents: (i) Company shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as practicable after Company becomes aware of it; (ii) Company shall pay any such Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the
case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) the sum payable by such Credit Party in respect of which the relevant deduction or withholding is required shall be increased to the extent necessary to ensure that, after the making of that deduction or withholding, Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction or withholding been required or made; and (iv) within thirty days after paying any sum from which it is required by law to make any deduction or withholding, Company shall deliver to Administrative Agent evidence satisfactory to the other affected parties of such deduction or withholding and of the remittance thereof to the relevant taxing or other authority; provided, no such additional amount shall be required to be paid to the Administrative Agent or any Lender under clause (iii) above except to the extent that any change after the date hereof (in the case of the Administrative Agent and each Lender listed on the signature pages hereof on the Closing Date) or after the effective date of an assignment or appointment pursuant to which such Lender or a new Administrative Agent became a party to this Agreement in any such requirement for a deduction or withholding as is mentioned therein shall result in an increase in the rate of such deduction or withholding from that in effect at the date hereof or at the date of such an assignment or appointment, as the case may be, in respect of payments to such Lender or Administrative Agent; provided further, no such additional amount shall be required to be paid to Administrative Agent or any Lender under clause (iii) above with respect to backup withholding.
(c) Evidence of Exemption From U.S. Withholding Tax. Each Lender (including for purposes of this Section 2.20(c), the Administrative Agent) that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent for transmission to Company, on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Company or Administrative Agent (each in the reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company or Administrative Agent to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver either Internal Revenue Service Form W-8BEN (with respect to income tax treaty benefits) or W-8ECI pursuant to clause (i) above, a Certificate re Non-Bank Status together with two original copies of the appropriate Internal Revenue Service Form W-8 (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a “U.S. Lender”) shall deliver to Administrative Agent and Company on or prior to the Closing Date (or, if later, on or prior to the date on which such Lender becomes a party to this Agreement) two original copies of Internal Revenue Service Form W-9 (or any successor form), properly completed and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from United States backup withholding tax, or otherwise prove that it is entitled to such an exemption. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this Section 2.20(c) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall
promptly deliver to Administrative Agent for transmission to Company two new original copies of Internal Revenue Service Form W-8BEN or W-8ECI, or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8, as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and Company of its inability to deliver any such forms, certificates or other evidence. Company shall not be required to pay any additional amount to any Non- US Lender under this Section 2.20 if such Lender shall have failed (1) to deliver the forms, certificates or other evidence referred to in this Section 2.20(c), or (2) to notify Administrative Agent and Company of its inability to deliver any such forms, certificates or other evidence, as the case may be; provided, if such Lender shall have satisfied the requirements of the first sentence of this Section 2.20(c) on the Closing Date or on the date of the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this Section 2.20(c) shall relieve Company of its obligation to pay any additional amounts pursuant to this Section 2.20 (to the extent the Company is otherwise required to pay additional amounts pursuant to this Section 2.20) in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described herein.
(d) Subject to the provisos in Section 2.20(b), the Company shall indemnify the Administrative Agent and each Lender (each, a “Tax Indemnified Party”) within thirty (30) days after written demand therefor, for the full amount of any Taxes or Other Taxes paid by such Tax Indemnified Party (other than any Tax imposed on the net income of such Tax Indemnified Party), with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder (including such Taxes imposed or asserted on or attributable to amounts payable under this Section 2.20), and any penalties, interest or reasonable expenses arising therefrom. Notwithstanding the foregoing, the Company shall not be obligated to make payment to a Tax Indemnified Party with respect to penalties, interest and expenses if (i) such amounts arose as a result of the Tax Indemnified Party’s failure to timely pay such Taxes; (ii) written demand therefor was not made within 180 days from the date on which such Tax Indemnified Party received written notice of the imposition of such Taxes, (iii) such amounts arose or accrued after the Company’s satisfaction of its indemnification obligations under this Section 2.20(d); or such amounts are attributable to the Tax Indemnified Party’s gross negligence or willful misconduct. A certificate containing reasonable detail as to the amount of such payment or liability delivered to the Company by a Tax Indemnified Party shall be conclusive absent manifest error. After a Tax Indemnified Party receives written notice of the imposition of Taxes subject to this Section 2.20(d), such Tax Indemnified Party will act in good faith to promptly notify the Company of its obligations hereunder.
(e) If the Administrative Agent or a Lender determines, in its sole discretion, that is has received a refund of or credit against any Taxes or Other Taxes as to which it has been indemnified by the Company or any Credit Party with respect to which the Company or Credit Party has paid additional amounts pursuant to this Section 2.20, it shall pay over such refund or credit to Company (but only to the extent of amounts paid by Company under this Section 2.20), net of all out-of-pocket expenses of the Administrative Agent or such Lender without interest (other than any interest paid by the relevant taxing authority with respect to such refund or credit); provided, however, that Company, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to Company to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such taxing authority or such credit is subsequently denied. Nothing in this Section 2.20 shall be construed to require the Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to Company or any other Person.
SECTION 3. CONDITIONS PRECEDENT
(a) Credit Documents. Administrative Agent shall have received sufficient copies of each Credit Document originally executed and delivered by each applicable Credit Party for each Lender.
(b) Organizational Documents; Incumbency. Administrative Agent shall have received (i) sufficient copies of each Organizational Document executed and delivered by each Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, for each Lender, each dated the Closing Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of such Person executing the Credit Documents to which it is a party; (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Closing Date; and (v) such other documents as Administrative Agent may reasonably request.
(c) Organizational and Capital Structure. The organizational structure and capital structure of Company and its Subsidiaries shall be as set forth on Schedule 4.2.
(d) Permitted Working Capital Facility Documents. Collateral Agent shall have received the following agreements in form and substance reasonably satisfactory to Requisite Lenders:
(i) a certified copy of the Working Capital Facility Credit Agreement and the Working Capital Facility Security Agreement;
(ii) a copy of the Working Capital Intercreditor Agreement; and
(iii) evidence satisfactory to Administrative Agent that the borrowing availability (calculated after giving effect to any loans to be made and letters of credit to be outstanding on the Closing Date and without deduction for any minimum availability reserve) shall not be less than $20,000,000.
(e) Accuracy of Representations and Warranties. The representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of the Closing Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date.
(f) Existing Specified Indebtedness. On the Closing Date, Company and its Subsidiaries shall have repaid in full all Existing Specified Indebtedness. On the Closing Date, Company and its Subsidiaries shall have delivered to Collateral Agent and Administrative Agent all documents or instruments necessary to release all Liens, if any, securing such Existing Specified Indebtedness.
(g) Transaction Costs. On or prior to the Closing Date, Company shall have delivered to Administrative Agent Company’s reasonable best estimate of the Transactions Costs (other than fees payable to any Agent).
(h) Governmental Authorizations and Consents. Each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the execution, delivery and performance of the Credit Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
(i) Absence of Default. As of the Closing Date, no event shall have occurred and be continuing or would result from the consummation of the Credit Extension on the Closing Date that would constitute an Event of Default or a Default.
(j) Personal Property Collateral. In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by Company of its obligations under the Pledge and Security Agreement and the other Collateral Documents (including, without limitation, its obligations to authorize the filing of UCC financing statements and execute (if required) and deliver originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(ii) A completed Collateral Questionnaire dated the Closing Date and executed by an Authorized Officer of each Credit Party, together with all attachments contemplated thereby, including (A) the results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens), as specified by the Collateral Agent or counsel to the Administrative Agent; and
(iii) evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 6.1(b)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(k) [Reserved].
(l) Financial Statements; Projections. Lenders shall have received from Company (i) the Historical Financial Statements and (ii) the Projections.
(m) Evidence of Insurance. Collateral Agent shall have received a certificate from Company’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect and that Collateral Agent, for the benefit of Lenders has been named as additional insured and loss payee thereunder to the extent required under Section 5.5.
(n) Opinion of Counsel to Credit Parties. Lenders and their respective counsel shall have received originally executed copies of the favorable written opinion of outside counsel for Credit Parties, in the form of Exhibit D-1 and D-2, respectively, dated as of the Closing Date, addressed to Lenders and the Agents, and otherwise in form and substance reasonably satisfactory to Lenders and their respective counsel (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(o) [Reserved].
(p) Fees and Expenses. Company shall have paid to the Agents the fees and expenses payable on or prior to the Closing Date referred to in Section 2.11.
(q) Solvency Certificate. On the Closing Date, Administrative Agent shall have received a Solvency Certificate from Company dated the Closing Date and addressed to Administrative Agent and Lenders, and in form, scope and substance reasonably satisfactory to Administrative Agent,
with appropriate attachments and demonstrating that Company and its Subsidiaries, taken as a whole, are and will be Solvent.
(r) Closing Date Certificate. Company shall have delivered to Administrative Agent an originally executed Closing Date Certificate, together with all attachments thereto.
(s) Letter of Direction. Administrative Agent shall have received a duly executed letter of direction from Company addressed to Administrative Agent, on behalf of itself and Lenders, directing the disbursement on the Closing Date of the proceeds of the Loans made on such date.
(t) Patriot Act. Prior to the Closing Date, the Arranger shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
(u) No Litigation. There shall not exist any action, suit, investigation, litigation or proceeding pending or threatened in writing in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of Administrative Agent, singly or in the aggregate, that could reasonably be expected to have a Material Adverse Effect.
(v) Completion of Proceedings. All corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby shall be reasonably satisfactory in form and substance to Administrative Agent and its counsel, and Administrative Agent, Syndication Agent and its counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.
(a) Conditions Precedent. The obligation of each Lender to make any Delayed Draw Term Loan on any Credit Date, including the Closing Date, is subject to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed Funding Notice;
(ii) after giving effect to the Delayed Draw Term Loans requested on such Credit Date, Company shall be in pro forma compliance with the covenants set forth in Sections 6.8(a), (b) and (c);
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; and
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;.
(b) Notices. Any Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent. In lieu of delivering a Notice, Company may give Administrative Agent telephonic notice by the required time of any proposed borrowing or conversion/continuation, as the case may be; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or before the applicable date of borrowing or continuation/conversion or issuance. Neither Administrative Agent nor any Lender shall incur any liability to Company in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of Company or for otherwise acting in good faith.
SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) The execution, delivery and compliance by each Credit Party to each Credit Document to which it is a party and the consummation of the transactions contemplated by the Credit Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Company or any of its Subsidiaries is a party or by which Company or any of its
Subsidiaries is bound or to which any of the property or assets of Company or any of its Subsidiaries is subject, other than such conflict, breach or violation as could not reasonably be expected to have a Material Adverse Effect, (ii) result in or require the creation or imposition of any Lien upon any of the properties or assets of Company or any of its Subsidiaries (other than the Liens created by the Credit Documents in favor of the Collateral Agent) or (iii) result in any violation of the provisions of the Organizational Documents of Company or any of its Subsidiaries or any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Company or any of its Subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such Governmental Authority is required for the consummation by the Credit Parties of the transactions contemplated by the Credit Documents (other than the filing of UCC financing statements to perfect the Collateral Agent’s Liens in certain of the Collateral); and no approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of Company or any of its Subsidiaries is required for the consummation by the Credit Parties of the transactions contemplated by the Credit Documents, except for such approvals or consents which have been obtained, and the execution and delivery by the respective parties thereto of the Working Capital Intercreditor Agreement.
(b) Neither Company nor any of its Subsidiaries is (i) in violation of its Organizational Documents or (ii) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, other than, in the case of clause (ii) , such defaults as could not reasonably be expected to have a Material Adverse Effect, and no condition exists which, with the giving of notice or the lapse of time or both, could reasonably be expected to constitute such a default.
(a) Title. Except for Permitted Liens and except as disclosed on Schedule 4.13, Company and its Subsidiaries have good and marketable title to all personal property owned by them, in each case free and clear of all Liens except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by Company and its Subsidiaries; and any real property and buildings held under lease by Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by Company and its Subsidiaries.
(b) Real Estate. As of the Closing Date, Schedule 4.13 contains a true, accurate and complete list of (i) all Material Real Estate Assets, and (ii) the lease of Company’s headquarters at the address listed on Appendix B hereto (together with all amendments, modifications, supplements, renewals or extensions of any thereof). The lease described in clause (ii) of the immediately preceding sentence is in full force and effect and constitutes the legally valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles.
(c) Intellectual Property. Subject to the qualifications set forth in this Section 4.13(c) below, Company and/or its Subsidiaries own, or are licensed or otherwise have the right to use, all patents, inventions, trademarks, service marks, trade names, domain names, copyrights, and registrations and applications for the foregoing, know-how, manufacturing processes, formulae, trade secrets, rights of publicity of natural persons and any other intangible property and assets which are material to the businesses of Company and its Subsidiaries as now conducted and as proposed to be conducted (collectively, the “Intellectual Property Rights”). Except as set forth on Schedule 4.13(c), Company does not have any Knowledge of, and neither Company nor any of its Subsidiaries has given any notice of, any pending conflicts with or infringement of or other violation of any Intellectual Property Rights or Regulatory Approvals by any third party, and no action, suit, arbitration, or legal, administrative or other proceedings, or investigation is pending, or, to the Knowledge of Company, threatened, which involves any Intellectual Property Rights and which could reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 4.13(c), neither Company nor any of its Subsidiaries is subject to any judgment, order, writ, injunction or decree of any Governmental Authority or any arbitrator, or has entered into or is a party to any contract, which restricts or impairs the use of any such Intellectual Property Rights or Company’s or any of its Subsidiaries’ use of or right to use any of the Intellectual Property Rights and which could reasonably be expected to have a Material Adverse Effect. To the Knowledge of Company, except as set forth on Schedule 4.13(c), no Intellectual Property Rights licensed to or by or otherwise used by Company or any of its Subsidiaries, no services rendered or products manufactured by or sold by Company or any of its Subsidiaries, and no conduct of the business of Company or any of its Subsidiaries, infringes upon or otherwise violates any intellectual property rights of any third party. Except as set forth on Schedule 4.13(c), neither Company nor any of its Subsidiaries has received notice of any pending conflict with or infringement upon such third-party intellectual property rights. Except as set forth on Schedule 4.13(c), no claims have been asserted by any Person with respect to the validity of or Company’s or any of its Subsidiaries’ ownership of or right to use, the Intellectual Property Rights and, to the Knowledge of Company, there is no reasonable basis for any such claim to be successful. Except as set forth on Schedule 4.13(c), the Intellectual Property Rights are valid and enforceable (to the extent such Intellectual Property Rights can be enforceable) and no registration or application relating thereto that is material to the business of Company or its Subsidiaries has lapsed, expired or been abandoned or cancelled or is the subject of cancellation or other adversarial proceedings, and all applications therefore are pending and are in good standing. Company and its Subsidiaries have complied in all material respects with their respective contractual obligations relating to the Intellectual Property Rights used pursuant to licenses. Company and its Subsidiaries take reasonable security measures that are adequate to retain trade secret protection in the non-patented technology that is material to their business.
(a) Neither Company nor any of its Subsidiaries is subject to regulation under the Investment Company Act of 1940, as amended (the “Investment Company Act”); and neither Company nor any of its Subsidiaries is, and after receipt of the Loans or the use of the Loan proceeds, will be, an “investment company” as such term is defined in the Investment Company Act.
(b) Except as disclosed in Schedule 4.17(b)(i), Company and each of its Subsidiaries is in compliance with all applicable laws, statutes, ordinances, rules and regulations and has filed all applications and has obtained all licenses, permits and approvals or other regulatory authorizations of the Federal Food and Drug Administration (the “FDA”) and any other Governmental Authorities with regulatory authority over the activities of Company and its Subsidiaries (including, without limitation, all FDA approvals necessary for manufacturing or marketing the products Company and each of its Subsidiaries currently manufacture or market) (“Regulatory Approvals”), other than where the failure to so be in compliance could reasonably be expected to have a Material Adverse Effect.
(c) The FDA has not commenced, or, to Company’s Knowledge, threatened to initiate, any action to withdraw its approval of any product of Company or its Subsidiaries or commenced or, to Company’s Knowledge, threatened in writing to initiate any action to withdraw its approval of any facility of Company or its Subsidiaries.
(d) To Company’s Knowledge, the human clinical trials conducted by or on behalf of Company or its Subsidiaries, or in which Company or its Subsidiaries have participated, or the results thereof, were and, if still pending, are being, conducted in accordance with applicable regulatory requirements; Company has no Knowledge of any other studies or tests, the results of which discredit the results of such human clinical trials; neither Company nor its Subsidiaries have received any notice or correspondence from the FDA or any other Governmental Authority requiring the termination or suspension of any human clinical trials conducted by, or on behalf of, Company or its Subsidiaries or in which Company or its Subsidiaries have participated, or any modification of any clinical trials conducted
by, or on behalf of, Company or its Subsidiaries or in which Company or its Subsidiaries have participated.
(a) Each of Company and its Subsidiaries is in compliance with all applicable statutes, rules, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any
such Real Estate Asset or the operations of Company or any of its Subsidiaries), except in each of the foregoing cases, for such non compliance that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(b) Company and its Subsidiaries possess all material certificates, authorities or permits (including all certificates, authorities and permits pursuant to Environmental Laws) issued by appropriate Governmental Authorities necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit.
SECTION 5. AFFIRMATIVE COVENANTS
(a) Monthly Reports. As soon as available, and in any event within thirty (30) days after the end of each month ending after the Closing Date (except any such month as is the last month of a Fiscal Quarter), the consolidated balance sheets of Company and its Subsidiaries as at the end of such month and the previous Fiscal Year end and the related consolidated statements of operations and cash flows of Company and its Subsidiaries for such month and for the period from the beginning of the then current Fiscal Year to the end of such month, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and a statement of stockholders’ equity from the prior Fiscal Year end to the end of such month, and with respect to the consolidated statement of operations, corresponding figures from the Financial Plan for the current Fiscal Year, as modified from time to time by management and approved by the Board of Directors of Company, for such month and for the period from the beginning of the then current Fiscal Year to the end of such month;
(b) Quarterly Financial Statements. As soon as available, and in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter and the previous Fiscal Year end and the related consolidated statements of operations and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and a statement of stockholders’ equity from the prior Fiscal Year end to the end of such month and, with respect to the consolidated statements of operations, the corresponding figures from the Financial Plan for the current Fiscal Quarter and from the prior Fiscal Year end to the end of such Fiscal Quarter, as modified from time to time by management and approved by the Board of Directors of Company, all in reasonable detail, together with a Financial Officer Certification with respect thereto;
(c) Annual Financial Statements. As soon as available, and (i) in any event within 45 days after the Closing Date, the audited financial statements of Company for the Fiscal Year ended December 31, 2006; (ii) in any event within ninety (90) days after the end of each Fiscal Year (other than the Fiscal Year ended December 31, 2006), the consolidated and consolidating balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated (and with respect to statements of operations, consolidating) statements of operations, stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and, with respect to the consolidated
statement of operations, the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, as modified from time to time by management and approved by the Board of Directors of Company, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; provided, however, that until Company has an operating Subsidiary, Company shall not be obligated to prepare consolidating financial statements and (iii) in any event within ninety (90) days after the end of each Fiscal Year, with respect to such consolidated financial statements (such statements to exclude the corresponding figures from the Financial Plan), a report thereon of Ernst & Young, LLP or other independent certified public accountants of recognized national standing selected by Company, and reasonably satisfactory to Administrative Agent (which report shall be unqualified as to going concern and scope of audit, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards), together with a written statement by such independent certified public accountants stating that in connection with their audit, nothing came to their attention that caused them to believe that Company failed to comply with the terms, covenants, provisions or conditions of Sections 6.8(a), (b) or (c) of this Agreement insofar as they relate to accounting matters. Their report will indicate that their audit was not directed primarily towards obtaining knowledge of such noncompliance;
(d) Compliance Certificate. Together with each delivery of financial statements of Company and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;
(e) [RESERVED]
(f) Notice of Default. Promptly upon any Responsible Officer of Company obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Company with respect thereto; (ii) that any Person has given any written notice to Company or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of an Authorized Officer specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Company has taken, is taking and proposes to take with respect thereto; provided, however, that Company shall not be obligated under the foregoing provision to furnish any information to the extent that furnishing such information would result in its waiver of a privilege;
(g) Notice of Litigation. Promptly upon any Responsible Officer of Company obtaining knowledge of (i) the institution of, or non frivolous written threat, as determined by Company in its reasonable business judgment, of, any Adverse Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to Company to enable Lenders and their counsel to evaluate such matters; provided, however, that Company shall not be obligated under the foregoing provision to furnish any information to the extent that furnishing such information would result in its waiver of a privilege;
(h) ERISA. (1) Promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (2) with reasonable promptness, copies of (x) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Company, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan, and (y) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent shall reasonably request;
(i) Financial Plan. (1) As soon as practicable and in any event no later than thirty (30) days after the beginning of each Fiscal Year, a consolidated budget and/or financial forecast with respect to the statement of operations for such Fiscal Year (a “Financial Plan”), including a Financial Plan of Company and its Subsidiaries for such Fiscal Year containing monthly plans of the then-upcoming Fiscal Year and quarterly plans thereafter for the next three Fiscal Years (but no later than 2012), together with a pro forma Compliance Certificate for each such Fiscal Year and an explanation of the assumptions on which such forecasts are based; and (2) reasonably promptly after each modification of the Financial Plan by management and approval thereof by the Board of Directors, a copy of such modification;
(j) Insurance Report. As soon as practicable and in any event within 90 days following the end of each Fiscal Year, a certificate from Company’s insurance broker(s) in form and substance satisfactory to Administrative Agent outlining all material insurance coverage maintained by Company as of the date of such certificate;
(k) Notice of Submissions to Governmental Authorities. Promptly after submission of any material documents to any Governmental Authority in connection with any investigation of any Credit Party other than routine inquiries by such Governmental Authority, to the fullest extent permitted by applicable law, notice, in reasonable detail, of the furnishing of such documents and information to such Governmental Authority; following the receipt of such notice, the Administrative Agent on reasonable notice to the Credit Party shall have the right to review copies of such documents and information during the business hours of the Credit Party at Company’s executive offices; provided, however, that the Credit Party shall not be obligated to furnish such notice or make such documents available for review, as the case may be, to the extent that doing so would invalidate any privileged status granted by such Governmental Authority with respect to the information contained in such notice or in such documents and information, respectively, in which case, the Credit Party shall furnish a notice, or a summary of the documents or information so provided, respectively, that does not invalidate such privilege;
(l) Notice Regarding Material Contracts. Promptly, and in any event within ten Business Days (i) after any Material Contract of Company or any of its Subsidiaries is terminated or amended in a manner that is materially adverse to Company or such Subsidiary, as the case may be, or (ii) any new Material Contract is entered into, a written statement describing such event, with copies of such material amendments or new contracts, delivered to Administrative Agent (to the extent such delivery is permitted by the terms of the applicable Material Contract, provided, no such prohibition on delivery shall be effective if it were bargained for by Company or its applicable Subsidiary with the intent of avoiding compliance with this Section 5.1(l)), and an explanation of any actions being taken with respect thereto;
(m) FDA Violation Notices. Promptly, and in any event within 5 Business Days after any Credit Party has Knowledge of any material violation, claim, complaint, charge or receipt of any
material violation, claim, complaint or charge of or under the Food and Drug Act or any material applicable statutes, rules, regulations, guidelines, policies orders or directives administered or issued by the FDA, including without limitation receipt by any Credit Party or any of its Subsidiaries of any Product Recall Notice, other FDA notice satisfying the foregoing materiality standard or amendment to such a previous Product Recall Notice or FDA notice that is required to be disclosed under this Section 5.1(m), a statement of an Authorized Officer setting forth the material details of such occurrence and the actions, if any, which such Credit Party proposes to take with respect thereto and in the case of a written document evidencing such event, together with a true, correct and complete copy of such Product Recall Notice, FDA Notice or amendment or other notice, as the case may be (other than to the extent that provision of such documents or information to the Agents and the Lenders would invalidate any privileged status granted by such Governmental Authority with respect to such documents or information, in which case, the Credit Parties shall furnish a summary of the documents or information so provided that does not invalidate such privilege);
(n) Information Regarding Collateral. (a) Company will furnish to Collateral Agent prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in any Credit Party’s identity or corporate structure, (iii) in any Credit Party’s jurisdiction of organization or (iv) in any Credit Party’s Federal Taxpayer Identification Number or state organizational identification number. Company agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected First Priority Lien in all the Collateral (except the Working Capital Collateral, in which Collateral Agent will have a valid, legal and perfected second lien) and for the Collateral Agent at all times following such change to have a valid, legal and perfected First Priority Lien (except the Working Capital Collateral, in which Collateral Agent will have a valid, legal and perfected second lien) as contemplated in the Collateral Documents. Company also agrees promptly to notify Collateral Agent if any material portion of the Collateral is damaged or destroyed;
(o) Annual Collateral Verification. At the time of delivery of the annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), Company shall deliver to Collateral Agent an Officer’s Certificate (i) confirming that there has been no change in such information since the date of the Collateral Questionnaire delivered on the Closing Date or identifying such changes should any exist, and (ii) certifying that all UCC financing statements (including fixtures filings, as applicable) and all supplemental intellectual property security agreements or other appropriate filings, recordings or registrations, have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above (or in such Collateral Questionnaire) to the extent necessary to effect, protect and perfect the security interests under the Collateral Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period);
(p) Other Information. (A) Promptly upon their becoming publicly available, copies of (i) all financial statements, financial reports, notices and proxy statements sent or made available generally by Company to its security holders acting in such capacity or by any Subsidiary of Company to its security holders other than Company or another Subsidiary of Company, (ii) all regular and periodic financial reports, reports filed under the Exchange Act and all registration statements and prospectuses, if any, filed by Company or any of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission, and (iii) all press releases and other statements made available generally by Company or any of its Subsidiaries to the public concerning material developments in the business of Company or any of its Subsidiaries, and (B) such other information and data with respect to Company or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent or any Lender; and
(q) Concurrently with the delivery of any document or notice required to be delivered pursuant to this Section 5.1, Company shall indicate in writing whether such document or notice contains Nonpublic Information. Company and each Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not wish to receive material non-public information with respect to Company, its Subsidiaries or their securities) and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that Company has indicated contains Nonpublic Information shall not be posted on that portion of the Platform designated for such public-side Lenders. If Company has not indicated whether a document or notice delivered pursuant to this Section 5.1 contains Nonpublic Information, Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material nonpublic information with respect to Company, its Subsidiaries and their securities.
(a) Environmental Disclosure. Company will deliver to Administrative Agent and Lenders:
(i) as soon as practicable, copies of all environmental audits, investigations, analyses and reports of any kind or character that are in the control of or are reasonably available to Company, whether prepared by personnel of Company or any of its Subsidiaries or by independent consultants, Governmental Authorities or any other Persons, with respect to significant environmental matters at any Facility or with respect to any Environmental Claims that, in any such case, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(ii) promptly upon the occurrence thereof, written notice describing in reasonable detail (1) any Release required to be reported to any federal, state or local Governmental Authority under any applicable Environmental Laws that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and (2) any remedial action taken by Company or any other Person in response to (A) any Hazardous Materials Activities the existence of which has a reasonable possibility of resulting in one or more Environmental Claims that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (B) any Environmental Claims that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(iii) as soon as practicable following the sending or receipt thereof by Company or any of its Subsidiaries, a copy of any and all written communications (provided, however, that Company shall not be obligated under the foregoing provision to furnish any information that would result in its waiver of a privilege), with respect to (1) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of giving rise to a Material Adverse Effect, (2) any Release required to be reported to any federal, state or local Governmental Authority that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and (3) any request for information from any Governmental Authority that suggests such agency is investigating whether Company or any of its Subsidiaries may be potentially responsible for any Hazardous Materials Activity that could reasonably be expected to have a Material Adverse Effect;
(iv) prompt written notice describing in reasonable detail (1) any proposed acquisition of stock, assets, or property by Company or any of its Subsidiaries that could reasonably be expected to (A) expose Company or any of its Subsidiaries to, or result in, Environmental Claims that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B) affect the ability of Company or any of its Subsidiaries to maintain in full force and effect all material Governmental Authorizations required under any Environmental Laws for their respective operations, the absence of which could be reasonably expected to have a Material Adverse Effect and (2) any proposed action to be taken by Company or any of its Subsidiaries to modify current operations in a manner that could reasonably be expected to subject Company or any of its Subsidiaries to any additional material obligations or requirements under any Environmental Laws and which could reasonably be expected to have a Material Adverse Effect; and
(v) with reasonable promptness, such other documents and information as from time to time may be reasonably requested by Administrative Agent in relation to any matters disclosed pursuant to this Section 5.9(a); provided, however, that Company shall not be obligated under the foregoing provision to furnish any information to the extent that furnishing such information would result in its waiver of a privilege.
(b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and shall cause each of its Subsidiaries promptly to take, any and all commercially reasonable actions necessary to (i) avoid engaging in any Hazardous Materials Activities that would constitute a violation of applicable Environmental Laws that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) cure any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (iii) make an appropriate response to any Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 6. NEGATIVE COVENANTS
(a) the Obligations;
(b) Indebtedness of any Guarantor Subsidiary to Company or to any other Guarantor Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) [RESERVED];
(d) Indebtedness incurred by Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Company or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any performance, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with Deposit Accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Guarantor Subsidiary of Indebtedness of Company or another Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) reimbursement obligations in respect of letters of credit and surety bonds issued to support obligations of Company and its Subsidiaries in the ordinary course of business in an aggregate amount not to exceed at any time $7,500,000;
(j) Indebtedness with respect to Capital Leases (i) with respect to Company’s principal offices at Liberty Corner, New Jersey, if such offices are held under a Capital Lease, in an aggregate amount not to exceed at any time $10,000,000 and (ii) otherwise in an aggregate amount not to exceed at any time $3,000,000.
(k) purchase money Indebtedness, in an aggregate amount for all Indebtedness under this clause (k) not to exceed at any time $10,000,000; provided, any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness;
(l) the Permitted Working Capital Facility;
(m) Indebtedness evidenced by the Interest Rate Agreements and other Indebtedness and obligations owing under Hedge Agreements relating to Loans hereunder and other Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(n) [RESERVED];
(o) so long as no Event of Default shall be in existence or would occur as a result of the incurrence thereof, other Indebtedness of Company and/or its Subsidiaries, in an aggregate amount for all Indebtedness under this clause (o) not to exceed $50,000,000 at any time outstanding, that is unsecured and (ii) junior in right of payment to the payment of the Indebtedness arising or existing under this Agreement and the other Credit Documents, and the terms of which require no scheduled amortization or other scheduled payments of principal prior to at least one year after the Maturity Date, provided, that such Indebtedness is subordinated to the Obligations and the First Priority Lien of the Collateral Agent, pursuant to an intercreditor agreement with the lenders under such subordinated Indebtedness in form and substance reasonably acceptable to the Syndication Agent and the Collateral Agent;
(p) Indebtedness with respect to leases and financings of vehicles for use by employees in the ordinary course of business, with such initial amounts, as of the Closing Date, as described in Schedule 6.1(p), provided, that financings that are securitizations are specifically excluded;
(q) Indebtedness incurred in the ordinary course of business to customs and revenue authorities consisting of the obligation to pay customs duties in connection with the importation of goods;
(r) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by Company or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted Acquisition, in an aggregate amount not to exceed $10,000,000 at any one time outstanding, provided that (x) such Indebtedness existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Company or any Subsidiary (other than by any such person that so becomes a Subsidiary), and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided, that (1) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (2) the direct and contingent obligors with respect to such Indebtedness are not changed and (3) such Indebtedness shall not be secured by any assets other than the assets securing the Indebtedness being renewed, extended or refinanced; and
(s) other Indebtedness of Company and its Subsidiaries in an aggregate amount not to exceed at any time $10,000,000; provided that no more than $5,000,000 of Indebtedness incurred pursuant to this Section 6.1(s) may be secured.
(a) Subject to the terms of the Working Capital Intercreditor Agreement, Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to any Credit Document;
(b) Liens for Taxes, assessments or governmental charges or levies the payment of which is not required under Section 5.3;
(c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other similar Liens imposed by law (other than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA or securing Indebtedness for borrowed money unless permitted pursuant to subsections (a), (e) , (m), (n), (t), (u) or (w) of this Section 6.2), in each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;
(d) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, appeal bonds, bids, leases, government contracts, trade contracts and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;
(e) Liens on the Working Capital Collateral to secure the obligations under the Permitted Working Capital Facility;
(f) any interest or title of a lessor or sublessor under any lease of real estate permitted hereunder;
(g) Liens solely on any cash earnest money deposits made by Company or any of its Subsidiaries in connection with any letter of intent or purchase agreement permitted under the Credit Documents;
(h) purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business;
(i) 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;
(j) Liens for Indebtedness permitted under Section 6.1(i), provided, that such Liens encumber only Cash, Cash Equivalents or Deposit Accounts in which the Collateral Agent does not have a Lien;
(k) licenses of patents, copyrights, trademarks and other intellectual property rights granted by Company or any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of Company or such Subsidiary;
(l) Liens described in Schedule 6.2(l), but not the extension of coverage thereof to other property or assets;
(m) Liens securing Indebtedness permitted pursuant to Section 6.1(k); provided, any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness;
(n) UCC financing statements filed within the week prior to a refinancing of the Obligations to evidence the Liens securing such refinanced Obligations (provided the granting of Liens to secure such refinanced Obligations shall not be permitted);
(o) Liens securing Indebtedness permitted pursuant to (i) Section 6.1(j) and (ii) Section 6.1(r); provided that, in the case of Indebtedness permitted pursuant to Section 6.1(r), (A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to any other property or asset of Company or any Subsidiary and (C) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;
(p) Liens in connection with attachments and judgments (including judgment or appeal bonds) not constituting an Event of Default hereunder; provided, that the judgments secured shall, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall have been discharged within 30 days after the expiration of any such stay;
(q) easements, rights-of-way, restrictions (including zoning restrictions), minor defects or irregularities in title and other similar charges or encumbrances not, in any material respect, impairing the use of the encumbered Property for its intended purposes;
(r) leases or subleases granted to others in the ordinary course of business not interfering in any material respect with the business of Company and its Subsidiaries;
(s) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(t) Liens assumed in connection with a Permitted Acquisition, so long as such Liens cover only the assets acquired pursuant to such Permitted Acquisition and were not created in contemplation thereof;
(u) [RESERVED];
(v) Liens arising in connection with consignments or similar arrangements for the sale of goods in the ordinary course of business;
(w) Liens on vehicles acquired with Indebtedness permitted by Section 6.1(p); and
(x) additional Liens not otherwise permitted by the foregoing clauses of this Section 6.2; provided, that such additional Liens permitted by this clause (y) do not encumber property and assets which at any time exceed $5,000,000 in fair market value.
(a) Investments in Cash and Cash Equivalents;
(b) (i) equity Investments owned as of the Closing Date in any Subsidiary, Investments made after the Closing Date in Guarantor Subsidiaries; and (iii) Investments by Company or any Subsidiary in any Unrestricted Subsidiary; provided that the aggregate amount of Investments made after the Closing Date by Company or any Subsidiary in Unrestricted Subsidiaries shall not exceed $2,500,000 at any time outstanding (with each Investment being valued at cost at the time such Investment is made and net of dividends and distributions actually received by Company from Unrestricted Subsidiaries in respect of any such Investments (but not to exceed the cost of such Investment at the time made)).
(c) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors and (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of Company and its Subsidiaries;
(d) intercompany loans to the extent permitted under Section 6.1(b);
(e) [Reserved];
(f) (i) loans and advances to employees of Company and its Guarantor Subsidiaries made in the ordinary course of business in an aggregate principal amount not to exceed $2,000,000 at any time outstanding, and (ii) Section 83(b) Loans to employees outstanding as of the date hereof made to fund the early exercise of stock options in the amount of $3,200,000 (excluding accrued interest added to the principal thereof);
(g) Investments made in connection with Permitted Acquisitions permitted pursuant to Section 6.9;
(h) Investments existing on the date hereof and described in Schedule 6.7;
(i) receivables owing to Company or any of its Subsidiaries or any receivables and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(j) purchases of inventory, supplies, materials and equipment or licenses, contributions or leases of intellectual property, in each case in the ordinary course of business consistent with past practices;
(k) other Investments in an aggregate amount not to exceed at any time $2,500,000;
(l) Investments consisting of cash on deposit with banks or other depository institutions solely to the extent required in connection with the maintenance of deposit accounts in the ordinary course of business;
(m) other Investments in Subsidiaries other than wholly-owned Guarantor Subsidiaries of Company in an aggregate amount not to exceed at any time $2,500,000.
(a) Interest Coverage Ratio. Company shall not permit the Interest Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2007, to be less than the correlative ratio indicated:
(b) Leverage Ratio. Company shall not permit the Leverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2007, to exceed the correlative ratio indicated:
(c) Maximum Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures in any Fiscal Year ending prior to or on the Maturity Date in an aggregate amount for Company and its Subsidiaries in excess of $5,000,000; provided, such amount for any Fiscal Year shall be increased by the amount by which $5,000,000 exceeds the Consolidated Capital Expenditures for the immediately preceding Fiscal Year.
(d) Certain Calculations. With respect to any period during which a Permitted Acquisition, an Asset Sale, a designation of a Subsidiary as an Unrestricted Subsidiary or a Subsidiary Redesignation has occurred (each, a “Subject Transaction”), for purposes of determining compliance with the financial covenants set forth in this Section 6.8, Consolidated Adjusted EBITDA shall be calculated with respect to such period on a pro forma basis (including pro forma adjustments arising out of events which are directly attributable to a specific transaction, are factually supportable and are expected to have a continuing impact, in each case determined on a basis consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the Securities and Exchange Commission, which would include amounts attributed to acquired in-process research and development and cost savings resulting from head count reduction, closure of facilities and similar restructuring charges, which pro forma adjustments shall be certified by the chief financial officer of Company) using the historical financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of Company and its Subsidiaries which shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans incurred during such period); provided that (x) for any Subsidiary Redesignation then being designated, effect shall be given to such Subsidiary Redesignation and all other Subsidiary Redesignations after the first day of such period and on or prior to the date of the respective Subsidiary Redesignation then being designated, collectively, and (y) for 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 such period and on or prior to the date of the then applicable designation of a Subsidiary as an Unrestricted Subsidiary, collectively.
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby.
(b) any Subsidiary (other than Company) (i) that is no longer useful in the business of Company or (ii) of which liquidation or dissolution is in the best interest of Company, each as determined in good faith and reasonable discretion by Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company (or similar governing body)) and (2) no less than 75% thereof shall be paid in Cash on the date of such sale or within six months thereafter;
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7.
SECTION 7. GUARANTY
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor Subsidiary and not merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default;
(c) the obligations of each Guarantor Subsidiary hereunder are independent of the obligations of Company and the obligations of any other guarantor (including any other Guarantor Subsidiary) of the obligations of Company, and a separate action or actions may be brought and prosecuted against such Guarantor Subsidiary whether or not any action is brought against Company or any of such other guarantors and whether or not Company is joined in any such action or actions;
(d) payment by any Guarantor Subsidiary of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor Subsidiary’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor Subsidiary’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor Subsidiary from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor Subsidiary, limit, affect, modify or abridge any other Guarantor Subsidiary’s liability hereunder in respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor Subsidiary’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor Subsidiary) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith or any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor Subsidiary against Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Credit Documents; and
(f) this Guaranty and the obligations of Guarantor Subsidiaries hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor Subsidiary shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Credit Documents or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of Company or any of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Company may allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (viii) any bankruptcy, insolvency, liquidation or dissolution of any Credit Party, and (ix) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor Subsidiary as an obligor in respect of the Guaranteed Obligations.
(a) The obligations of Guarantor Subsidiaries hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Company or any other Guarantor Subsidiary or by any defense which Company or any other Guarantor Subsidiary may have by reason of the order, decree or decision of any court or administrative body resulting from any such case or proceeding.
(b) Each Guarantor Subsidiary acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest which but for such case or proceeding would have accrued on such portion of the Guaranteed Obligations, whether or not a claim is allowed for such interest in the related case or proceeding) shall be included in the Guaranteed Obligations because it is the intention of Guarantor Subsidiaries and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantor Subsidiaries pursuant hereto should be determined without regard to any rule of law or order which may relieve Company of any portion of such Guaranteed Obligations. Guarantor Subsidiaries will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Obligations are paid by Company, the obligations of Guarantor Subsidiaries hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
SECTION 8. EVENTS OF DEFAULT
(a) Failure to Make Payments When Due. Failure by Company to pay (i) when due any principal of any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan or any fee or any other amount due hereunder within three days after the date due; or
(b) Default in Other Agreements. (i) Failure of any Credit Party or any of their respective Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section 8.1(a)) with an aggregate principal amount of $7,500,000 or more, in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by any Credit Party with respect to any other material term of (1) one or more items of Indebtedness in the individual or aggregate principal amounts referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders) to cause, that Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or
(c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply with any term or condition contained in Section 2.6, Section 5.2 or Section 6; or
(d) Breach of Representations, etc. Any representation, warranty, certification or other statement made by any Credit Party in any Credit Document or in any statement or certificate by any Credit Party or any of its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect as of the date made; or
(e) Other Defaults Under Credit Documents. Any Credit Party shall default in the performance of or compliance with any term contained herein or any of the other Credit Documents, other than any such term referred to in any other subsection of this Section 8.1, and such default shall not have been remedied or waived within thirty (30) days (in the case of other provisions of this Agreement) after the earlier of (i) a Responsible Officer of such Credit Party becoming aware of such default or (ii) receipt by Company of notice from Administrative Agent of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of Company or any of its Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Company or any of its Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Company or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Company or any of its Subsidiaries, and any such event described in this clause (ii) shall continue for sixty days without having been dismissed, bonded or discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Company or any of its Subsidiaries shall have an order for relief entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or Company or any of its Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Company or any of its Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of Company or any of its Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 8.1(f) ; or
(h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or similar process involving (x) in any individual case an amount in excess of $7,500,000 or (y) in the aggregate at any time an amount in excess of $15,000,000 (in each case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Company or any of its Subsidiaries or any of their respective assets and, in the case of clause (x) , shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty days (or in any event later than five days prior to the date of any proposed sale thereunder); or
(i) Dissolution. Any order, judgment or decree shall be entered against any Credit Party (except any inactive or immaterial Subsidiary) decreeing the dissolution or split up of such Credit Party and such order shall remain undischarged or unstayed for a period in excess of thirty days; or
(j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or might reasonably be expected to result in liability of Company or any of its Subsidiaries in excess of $5,000,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to result in the imposition of a Lien or security interest under Section 412(n) of the Internal Revenue Code or under ERISA.
(k) Change of Control. A Change of Control shall occur; or
(l) Guaranties, Collateral Documents and other Credit Documents. At any time after the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in full of all Obligations or release thereof, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor Subsidiary shall repudiate its obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared null and void, or
Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any Collateral with a fair market value greater than $1,000,000 purported to be covered by the Collateral Documents with the priority required by the relevant Collateral Document, in each case for any reason other than the failure of Collateral Agent or any Secured Party to take any action within its control, or (iii) any Credit Party shall contest the validity or enforceability of any Credit Document in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Credit Document to which it is a party or shall contest the validity or perfection of any Lien in any Collateral purported to be covered by the Collateral Documents;
SECTION 9. AGENTS
(a) No Responsibility for Certain Matters. No Agent or any Related Party shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Credit Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing except as expressly set forth in the Credit Documents. Anything contained herein to the contrary notwithstanding, Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Loans, except to the extent it would be liable therefor pursuant to section 9.3(b). No Agent shall be required to take any action that, in
its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Credit Document or applicable law.
(b) Exculpatory Provisions. No Agent nor any of its Related Parties shall be liable to Lenders for any action taken or omitted by any Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross negligence, willful misconduct or bad faith as determined by a court of competent jurisdiction by a final and nonappealable judgment. Each Agent may at any time request instructions from Requisite Lenders or all affected Lenders with respect to any actions or approvals, which by the terms of this Agreement or any of the Credit Documents, such Agent is permitted or required to take or to grant. Each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Company and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 10.5).
(a) Agents under Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of Lenders, to be the agent for and representative of the Secured Parties with respect to the Guaranty, the Collateral and the Collateral Documents; provided that neither Administrative Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with respect to any Hedge Agreement. Each Lender, by its signature hereto or by its signature to an Assignment Agreement, consents and agrees to all terms of the Collateral Documents as such agreements may be in effect or may be amended from time to time in accordance with their terms (including, without limitation, the Working Capital Facility Intercreditor Agreement) and agrees to be bound by such terms as they apply to the Collateral Agent acting on behalf of such Lender. Subject to Section 10.5, without further written consent or authorization from Lenders, Administrative Agent or Collateral Agent, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented or (ii) release any Guarantor Subsidiary from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented.
(b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of the Credit Documents to the contrary notwithstanding, Company, Administrative Agent, Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by Collateral Agent in accordance with the terms hereof, and (ii) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, Collateral Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Requisite Lenders shall otherwise agree in writing), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale or other disposition.
(c) Rights in Collateral and Intercreditor Agreements. The Company, Administrative Agent, Collateral Agent and each Lender hereto acknowledge and agree that their
respective rights in the Collateral as established under each Credit Document are subject to the Working Capital Intercreditor Agreement.
(d) Rights under Hedge Agreements. No Hedge Agreement will create (or be deemed to create) in favor of any Lender Counterparty that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly provided in Section 10.5(c)(v) of this Agreement and Section 7.2 of the Pledge and Security Agreement.
SECTION 10. MISCELLANEOUS
(b) Electronic Communications.
(i) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2 if such Lender has notified Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. Administrative Agent or Company 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. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(ii) Each of the Credit Parties understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct, gross negligence or bad faith of Administrative Agent.
(iii) The Platform and any Approved Electronic Communications are provided “as is” and “as available”. None of the Agents or any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects is made by the Agent Affiliates in connection with the Platform or the Approved Electronic Communications.
(iv) Each of the Credit Parties, the Lenders and the Agents agree that Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with Administrative Agent’s customary document retention procedures and policies.
(a) Company agrees to pay promptly (i) all the actual and reasonable costs and expenses of preparation of the Credit Documents and any consents, amendments, waivers or other modifications thereto (subject to clause (iii below); (ii) all the costs of furnishing all opinions by counsel for Company and the other Credit Parties; (iii) the reasonable fees, expenses and disbursements of counsel to the Administrative Agent (provided that such fees, expenses and disbursements shall be limited to those of a single law firm plus such local counsel (not more than one per jurisdiction) as Agent shall deem reasonably necessary), in connection with the negotiation, preparation, execution and administration of the Credit Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by Company; (iv) all the actual reasonable costs and expenses of creating and perfecting Liens in favor of Collateral Agent, for the benefit of Lenders pursuant hereto, including filing and recording fees and expenses, Other Taxes, search fees, title insurance premiums and reasonable fees, expenses and disbursements of a single law firm acting as counsel to the Administrative Agent, and of counsel to Company and the other Credit Parties providing any opinions that Administrative Agent or Requisite Lenders may request in respect of the Collateral or the Liens created pursuant to the Collateral Documents; (v) all the actual reasonable costs and reasonable expenses (including the reasonable fees, expenses and disbursements of any appraisers, accountants, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral following the occurrence of an Event of Default; (vi) all other actual and reasonable costs and expenses incurred by Administrative Agent in connection with the negotiation, preparation and execution of any consents, amendments, waivers or other modifications to any Credit Document; and (vii) after the occurrence of an Event of Default, all costs and expenses, including reasonable attorneys’ fees and costs of settlement, incurred by Administrative Agent and each Lender in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or under the other Credit Documents by reason of such Event of Default (including in connection with the sale, lease or license of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings.
(b) Reimbursement. To the extent that Company for any reason fails to indefeasibly pay any amount required under this Section 10 to be paid by it to any Agent (or any sub-agent thereof, or any Related Party of any of the foregoing), each Lender severally agrees to pay to such Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided, that the reimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for such Agent (or any such sub-agent) in connection with such capacity). All amounts due under this Section 10.2(b) shall be paid promptly after demand therefor.
(a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and each Lender and each of their Related Parties (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the breach of contract, gross negligence, willful misconduct or bad faith of that Indemnitee as determined by a court of competent jurisdiction by a final and nonappealable judgment; provided further that no Credit Party shall have any obligation to any Indemnitee hereunder with respect to Tax matters, which shall be governed by Section 2.20. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall, subject to the proviso in the preceding sentence, contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.
(b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against Lenders, Agents and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, arising out of, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and Company hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections 10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be effective without the written concurrence of the Requisite Lenders; provided that Administrative Agent may, with the consent of Company only, amend, modify or supplement this Agreement to cure any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the rights of any Lender.
(b) Affected Lenders’ Consent. Without the written consent of each Lender affected thereby (other than a Defaulting Lender), no amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not prepayment), or alter the required application of any prepayment pursuant to Section 2.15, as applicable;
(iii) reduce the principal of or the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.10) or any fee or premium payable hereunder;
(iv) extend the time for payment of any such interest or fees;
(v) amend, modify, terminate or waive any provision of this Section 10.5(b), Section 10.5(c) or any other provision of this Agreement that expressly provides that the consent of all Lenders is required;
(vi) change the percentage of the outstanding principal amount of the Loans that is required for the Lenders or any of them to take any action hereunder or amend the definition of “Requisite Lenders” or “Pro Rata Share”, or modify the amount of the Commitment of any Lender;
(vii) release all or substantially all of the Collateral or any material Guarantor Subsidiary from the Guaranty, or subordinate any of the Collateral Agent’s Liens, in each case, except as expressly provided in the Credit Documents; or
(viii) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Credit Document, except as provided in Section 10.6.
(c) Other Consents. No amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by any Credit Party therefrom, shall:
(i) increase any Delayed Draw Term Loan Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Delayed Draw Term Loan Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision of Section 9 as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent; or
(iii) amend, modify or waive this Agreement or the Pledge and Security Agreement so as to alter the ratable treatment of Obligations arising under the Credit Documents and Obligations arising under Hedge Agreements or the definition of “Lender Counterparty,” “Hedge Agreement,” “Obligations,” or “Secured Obligations” in each case in a manner adverse to any Lender Counterparty with Obligations then outstanding without the written consent of any such Lender Counterparty.
(d) Execution of Amendments, etc. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.
(a) Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any interest therein may be assigned or delegated by any Credit Party without the prior written consent of all Lenders. 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 and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Register. Company, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and, except as provided in Section 10.6(i), no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until an Assignment Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding Tax matters and any fees payable in connection with such assignment, shall have been delivered to and accepted by Administrative Agent and recorded in the Register as provided in Section 10.6(e) . Prior to such recordation, all amounts owed with respect to the applicable Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.
(c) Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including all or a portion of its Loans owing to it or other Obligation (provided, however, that pro rata assignments shall be required and each such assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and any related Commitment) (i) to any Person meeting the criteria of the definition of “Eligible Assignee” upon the giving of notice to Company and Administrative Agent by delivery of the fully executed Assignment Agreement; and (ii) to any other Person consented to by each of Company and Administrative Agent (such consent not to be (x) unreasonably withheld or delayed or, (y) in the case of Company, required at any time an Event of Default shall have occurred and then be continuing); provided, further, each such assignment (other than to any Person meeting the criteria of clause (i) of the definition of “Eligible Assignee”) shall be in an aggregate amount of not less
than $1,000,000 (or such lesser amount as may be agreed to by Company and Administrative Agent or as shall constitute the aggregate amount of the Commitments or Loans of the assigning Lender).
(d) Mechanics. Except as provided in Section 10.6(i), the assigning Lender and the assignee to each such assignment thereof shall execute and deliver to the Administrative Agent an Assignment Agreement (such Assignment Agreement to be (A) electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent, which shall initially be the settlement system of ClearPar, LLC, or (B) manually executed and delivered, in either case without any additional processing or recordation fees) and (ii) such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee, if it shall not be a Lender immediately prior to the assignment, under such Assignment Agreement may be required to deliver to Administrative Agent pursuant to Section 2.20(c).
(e) Notice of Assignment. Upon its receipt of a duly executed and completed Assignment Agreement, together with the processing and recordation fee referred to in Section 10.6(d) if applicable (and any forms, certificates or other evidence required by this Agreement in connection therewith), Administrative Agent shall record the information contained in such Assignment Agreement in the Register and shall maintain a copy of such Assignment Agreement.
(f) Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof or upon executing and delivering an Assignment Agreement, as the case may be, represents and warrants as of the Closing Date or as of the applicable Effective Date (as defined in the applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course of its business and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control).
(g) Effect of Assignment. Subject to the terms and conditions of this Section 10.6, as of the “Effective Date” specified in the applicable Assignment Agreement: (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent such rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned thereby pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive the termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto; provided, anything contained in any of the Credit Documents to the contrary notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); and (iii) if any such assignment occurs after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Notes to Administrative Agent for cancellation, and thereupon Company shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the outstanding Loans of the assignee and/or the assigning Lender. Except as provided in clause (i) below, any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with clauses (c) through (g) 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 clause (h).
(i) The holder of any such participation, other than an Affiliate or Related Fund of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the Collateral under the Collateral Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating.
(ii) Company agrees that each participant shall be entitled to the benefits of Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided, (x) a participant shall not be entitled to receive any greater payment under Section 2.19 or 2.20 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 Company’s prior written consent and (y) a participant that would be a Non-US Lender if it were a Lender shall not be entitled to the benefits of Section 2.20 unless Company is notified of the participation sold to such participant and such participant agrees, for the benefit of Company, to comply with Section 2.20 as though it were a Lender; provided further that, except as specifically set forth in clauses (x) and (y) of this sentence, nothing herein shall require any notice to Company or any other Person in connection with the sale of any participation. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such Participant agrees to be subject to Section 2.17 as though it were a Lender.
(i) Certain Other Assignments and Participations. In addition to any other assignment or participation permitted pursuant to this Section 10.6, (i) any Lender may assign and/or pledge all or any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such Lender to any other Person (including, without limitation, any Federal Reserve Bank or any Federal Home Loan Bank) as collateral security (including, without limitation, pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank); provided that no Lender, as between Company and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and provided, further, that in no event shall the applicable Federal Reserve Bank or Federal Home Loan Bank, or other pledgee or trustee be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder and (ii) any Lender may assign any or all of its rights and obligations under the Credit Documents to an Affiliate of such Lender or a Related Fund
of such Lender without delivering an Assignment Agreement to Company or the Administrative Agent or the payment of any processing fee or the giving of the notice called for by Section 10.6(c)(i); provided, that (x) the Credit Parties and the Agents shall continue to deal solely and directly with such assigning Lender in connection with the interest so assigned unless such assignee is an Eligible Assignee and until such Lender and such Eligible Assignee shall have executed and delivered an Assignment Agreement to Company and the Administrative Agent for recordation, (y) the failure of such assigning Lender to deliver an Assignment Agreement to Company, the Administrative Agent or any other Person shall not affect the legality, validity or binding effect of such assignment and (z) the assigning Lender shall maintain a register on behalf of Company comparable to the Register which may be accessed upon reasonable notice and at such reasonable times during normal business hours and as often as may reasonably be requested. For the avoidance of doubt, any assignment contemplated by subclause (ii) above that is effected by delivery of an Assignment Agreement shall be subject to all other requirements set forth in this Section 10.6 for such assignment to be effective. Nothing in this Agreement or any other Credit Document shall prevent or prohibit a Lender from assigning or transferring all of a portion of its rights and delegating all or a portion of its obligations under this Agreement and the other Credit Documents to any lender to or financing source of such Lender; provided, however, that no lender to or financing source of such Lender shall be considered a Lender under this Agreement or any other Credit Document, and such Lender shall continue to be liable and obligated in all respects as a Lender under this Agreement and the other Credit Documents (and the Agent, the Lenders and Company shall only be required to communicate with, and otherwise deal with, such Lender as a Lender hereunder and under the other Credit Documents), unless such assignee or transferee is an Eligible Assignee and until such Eligible Assignee executes an Assignment Agreement and thereby becomes a Lender hereunder and under the other Credit Documents in accordance with the provisions of this Section 10.6.
a. The Credit Agreement;
b. Pledge and Security Agreement dated as of March 9, 2007 by the Credit Parties in favor of the Collateral Agent (the “Security Agreement”);
c. Patent Security Agreement dated as of March 9, 2007 by the Credit Parties in favor of the Collateral Agent (the “Patent Security Agreement”);
d. Trademark Security Agreement dated as of March 9, 2007 by the Credit Parties in favor of the Collateral Agent (the “Trademark Security Agreement”);
e. The agreements and instrument(s) creating, evidencing or securing indebtedness of the Borrower for borrowed money identified to us by an officer of the Borrower as material to the Borrower and listed in Annex C (the “Specified Agreements”);
f. The certificate of incorporation and bylaws of the Borrower (the “Governing Documents”); and
g. a photocopy of the UCC-1 financing statement naming the Borrower as debtor and the Collateral Agent as secured party, together with all schedules and exhibits to such financing statement, to be filed in the Office of the Secretary of State of the State of Delaware, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference (the “Delaware Financing Statement”).
1. The Borrower is a corporation under the DGCL with corporate power and authority to enter into the Loan Documents and perform its obligations thereunder. Based on certificates from public officials, we confirm that the Borrower is validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in the following States: California, Colorado, Connecticut, Georgia, New Jersey, Ohio, Pennsylvania, Texas and Arizona.
2. The execution, delivery and performance of the Loan Documents by the Borrower have been duly authorized by all necessary corporate action of the Borrower, and the Loan Documents have been duly executed and delivered by the Borrower.
3. Each of the Loan Documents constitutes a legally valid and binding obligation of the Credit Parties party thereto, enforceable against each such Credit Party in accordance with its respective terms.
4. The execution and delivery of the Loan Documents by the Credit Parties, and the borrowing of the initial loans by the Borrower and the granting of liens pursuant to the Loan Documents by the Credit Parties, on the date hereof do not:
5. The Security Agreement creates a valid security interest in favor of the Collateral Agent for the benefit of the Secured Parties in that portion of the collateral described in Section 2.1 of the Security Agreement in which each of the Credit Parties party thereto has rights and a valid security interest may be created under Article 9 of the New York UCC (the “UCC Collateral”), which security interest secures the Secured Obligations as defined in the Security Agreement.
6. The Delaware Financing Statement is in appropriate form for filing in the Office of the Secretary of State of the State of Delaware. Upon the proper filing of the Delaware Financing Statement in the Office of the Secretary of State of the State of Delaware, the security interest in favor of the Collateral Agent for the benefit of the Secured Parties in the Borrower’s rights in the UCC Collateral described in the Delaware Financing Statement will be perfected to the extent a security interest in such UCC Collateral can be perfected under the Delaware UCC by the filing of a financing statement in Delaware.
7. Upon delivery of that portion of the UCC Collateral consisting of the certificates in registered form representing the Borrower’s ownership interests in the Guarantors that constitute “certificated securities” within the meaning of Section 8-102(a)(4) of the New York UCC and that are listed on Annex D hereto (the “Pledged Securities”) to the Collateral Agent in, and while located in, the State of New York, pursuant to the Security Agreement, indorsed to the Collateral Agent or in blank, in each case, by an effective endorsement, or accompanied by undated stock powers with respect thereto duly indorsed in blank by an effective endorsement, the security interest in favor of the Collateral Agent for the benefit of the Secured Parties in the Pledged Securities will be perfected. Upon such delivery, the Collateral Agent’s security interest in the Pledged Securities has priority over any other security interest in the Pledged Securities granted by the Borrower assuming no other secured party has control of, and the absence of any other control agreement with respect to, the Pledged Securities.
8. To the extent that the federal patent laws of the United States apply to security interests in patents, the provisions of the Patent Security Agreement, together with the Security Agreement, create a valid security interest in favor of the Collateral Agent for the benefit of the Secured Parties in the United States patents and patent applications set forth on Schedule I to the Patent Security Agreement (the “Patent Collateral”), which security interest will secure the Secured Obligations as defined in the Security Agreement.
9. Upon (i) the proper filing of the Delaware Financing Statement in the Office of the Secretary of State of the State of Delaware and (ii) the proper recordation of the Patent Security Agreement in the United States Patent and Trademark Office (the “PTO”) against the Patent Collateral within three months from the date thereof, the security interest in favor of the Collateral Agent for the benefit of the Secured Parties in the Borrower’s rights in the Patent Collateral will be perfected to the extent a security interest in such Patent Collateral can be perfected under the Delaware UCC by the filing of a financing statement in Delaware or by recording the Patent Security Agreement in the PTO.
10. To the extent that the federal trademark laws of the United States apply to security interests in trademarks, the provisions of the Trademark Security Agreement, together with the Security Agreement, create a valid security interest in favor of the Collateral Agent for the benefit of the Secured Parties in the United States trademarks set forth on Schedule I to the Trademark Security Agreement (the “Trademark Collateral”), which security interest will secure the Secured Obligations as defined in the Security Agreement.
11. Upon (i) the proper filing of the Delaware Financing Statement in the Office of the Secretary of State of the State of Delaware and (ii) the proper recordation of the Trademark Security Agreement in the PTO against the Trademark Collateral within three months from the date thereof, the security interest in favor of the Collateral Agent for the benefit of the Secured Parties in the Borrower’s rights in the Trademark Collateral will be perfected to the extent a security interest in such Trademark Collateral can be perfected under the Delaware UCC by the filing of a financing statement in Delaware or by recording the Trademark Security Agreement in the PTO.
12. None of the Credit Parties is required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
a. the effects of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors, or the judicial application of foreign laws or governmental actions affecting creditors’ rights;
b. the effects of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought;
c. the invalidity under certain circumstances under law or court decisions of provisions for the indemnification or exculpation of or contribution to a party with respect to a liability where such indemnification, exculpation or contribution is contrary to public policy; and
d. we express no opinion with respect to (i) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or judicial relief; (ii) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (iii) waivers of broadly or vaguely stated rights; (iv) covenants not to compete; (v) provisions for exclusivity, election or cumulation of rights or remedies; (vi) provisions authorizing or validating conclusive or discretionary determinations; (vii) grants of setoff rights;
(viii) provisions to the effect that a guarantor is liable as a primary obligor, and not as a surety; (ix) provisions for the payment of attorneys’ fees where such payment is contrary to law or public policy; (x) proxies, powers and trusts; (xi) except as set forth in paragraph 4(ii) of this letter, provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property; (xii) provisions for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty; and (xiii) the severability, if invalid, of provisions to the foregoing effect.
(1) We express no opinion with respect to the priority of any security interest or lien, except as expressly set forth in paragraph 7.
(2) We express no opinion with respect to any agricultural lien or any collateral that consists of letter-of-credit rights, commercial tort claims, goods covered by a certificate of title, claims against any government or governmental agency, consumer goods, crops growing or to be grown, timber to be cut, goods which are or are to become fixtures, as-extracted collateral or cooperative interests.
(3) We assume the descriptions of collateral contained, or attached as schedules to, the Loan Documents sufficiently describe the collateral intended to be covered by the Loan Documents, and we express no opinion as to whether the phrases “all personal property” or “all assets” or similarly general phrases would be sufficient to create a valid security interest in the collateral or particular item or items of collateral.
(4) We have assumed that each of the Credit Parties has, or with respect to after-acquired property will have, rights in the collateral or the power to transfer rights in the collateral, and that value has been given, and we express no opinion as to the nature or extent of the Credit Parties’ rights in any of the collateral and we note that with respect to any after-acquired property, the security interest will not attach until the applicable Credit Party acquires such rights or power.
(5) We call to your attention the fact that the perfection of a security interest in “proceeds” (as defined in the Applicable UCC) of collateral is governed and restricted by Section 9-315 of the Applicable UCC.
(6) We have assumed that the exact legal name of the Borrower is as set forth in the copy of the organizational documents certified by the Delaware Secretary of State, and we have also assumed the accuracy of the other factual information set forth on the Delaware Financing Statement.
(7) Section 552 of the federal Bankruptcy Code limits the extent to which property acquired by a debtor after the commencement of a case under the federal Bankruptcy Code may be subject to a security interest arising from a security agreement entered into by the debtor before the commencement of such case.
(8) We express no opinion with respect to any property subject to a statute, regulation or treaty of the United States whose requirements for a security interest’s obtaining priority over the rights of a lien creditor with respect to the property preempt Section 9-310(a) of the Applicable UCC.
(9) We express no opinion with respect to any goods which are accessions to, or commingled or processed with, other goods to the extent that the security interest is limited by Section 9-335 or 9-336 of the Applicable UCC.
(10) We express no opinion as to any security interest in any portion of the collateral that is subject to an agreement prohibiting, restricting or conditioning the assignment thereof except to the extent that any such prohibitions or restrictions are rendered ineffective under the Applicable UCC or any such conditions have been complied with.
(11) We express no opinion as to the priority of the security interest as against any lien creditor to the extent that such security interest purports to secure any advances or other obligations other than those that are made without knowledge of the lien or pursuant to a commitment entered into without knowledge of the liens.
(12) Except as expressly set forth in paragraphs 8 through 11, we express no opinion regarding any security interest in any copyrights, patents, trademarks, service marks or other intellectual property, the proceeds thereof or money due with respect to the lease, license or use thereof except to the extent Article 9 of the New York UCC may be applicable to the foregoing and, without limiting the generality of the foregoing, we express no opinion as to the effect of any federal laws relating to copyrights, patents, trademarks, service marks or other intellectual property on the opinions expressed herein. In addition, we express no opinion as to any security interest in any license of copyrights, patents, trademarks or other intellectual property except to the extent that such license affirmatively permits the creation of a security interest therein.
(13) We express no opinion with respect to the security interest of the Collateral Agent for the benefit of any Secured Party other than the Lenders, except to the extent that the Collateral Agent has been duly appointed as agent for such person.
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