Execution Version
Exhibit 10.29
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of December 9, 2022 (this “Agreement”) is by and among the Lenders party hereto, GPM PETROLEUM LP, a Delaware limited partnership (the “Borrower”), the Guarantors party hereto and CAPITAL ONE, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”), Swingline Lender and an Issuing Lender.
RECITALS:
WHEREAS, reference is hereby made to the Amended and Restated Credit Agreement, dated as of July 15, 2019, by and among the Borrower, the guarantors party thereto from time to time, the lenders party thereto (collectively, the “Lenders” and individually, a “Lender”) from time to time, and Capital One, National Association, as Administrative Agent and the other agents and parties party thereto from time to time (as amended by that certain Increase Agreement and Amendment, dated as of April 1, 2020, the “Existing Credit Agreement”, and as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, including by this Agreement, the “Credit Agreement”; capitalized terms used and not otherwise defined herein being used herein as therein defined);
WHEREAS, pursuant to the Existing Credit Agreement the Administrative Agent has determined that U.S. dollar-denominated syndicated credit facilities being executed, or that include language similar to that contained in Section 2.12 of the Existing Credit Agreement, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR;
WHEREAS, the Administrative Agent has notified the Borrower and the Lenders that it has elected to declare that an Early Opt-in Election (as defined in the Existing Credit Agreement) has occurred, and the Administrative Agent and the Borrower propose to amend the Existing Credit Agreement to replace LIBOR (as defined in the Existing Credit Agreement) with a Benchmark Replacement; and
WHEREAS, pursuant to Section 2.12(b)(i) of the Existing Credit Agreement, the Administrative Agent, the Borrower, and the Lenders party hereto, constituting the Required Lenders, have agreed to amend the Existing Credit Agreement to replace LIBOR as more particularly described and provided for herein.
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first set forth above.
GPM PETROLEUM LP, as the Borrower
By: GPM Petroleum GP, LLC, its general partner
By /s/ Don Bassell___________________________
Name: Don Bassell
Title: CFO
By /s/ Maury Bricks___________________________
Name: Maury Bricks
Title: General Counsel
GPM PETROLEUM, LLC, as a Guarantor
By /s/ Don Bassell_____________________________
Name: Don Bassell
Title: CFO
By /s/ Maury Bricks__________________________
Name: Maury Bricks
Title: General Counsel
[Signature Page to Second Amendment]
Consented to by:
CAPITAL ONE, NATIONAL ASSOCIATION
as Administrative Agent, a Lender, Swingline Lender and Issuing Lender
By: /s/ Gabrielle Uzdin_____________________________
Name: Gabrielle Uzdin
Title: Duly Authorized Signatory
[Signature Page to Second Amendment]
Consented to by:
KeyBank NA,
as a Lender
By: /s/ Amra Rausche___________________________
Name: Amra Rausche
Title: Senior Vice President
[Signature Page to Second Amendment]
Consented to by:
Santander Bank, N.A.,
as a Lender
By: /s/ Jennifer Baydian_________________
Name: Jennifer Baydian
Title: Senior Vice President
[Signature Page to Second Amendment]
Consented to by:
Fifth Third Bank, National Association
as a Lender
By: /s/ Mike Ross_________________
Name: Mike Ross
Title: Managing Director
[Signature Page to Second Amendment]
Consented to by:
Raymond James Bank
as a Lender
By: /s/ Mark Specht_________________
Name: Mark Specht
Title: Vice President
[Signature Page to Second Amendment]
Consented to by:
Citizens Bank, N.A.,
as a Lender
By: /s/ Marc C. Van Horn_________________
Name: Marc C. Van Horn
Title: Vice President
[Signature Page to Second Amendment]
Consented to by:
Truist Bank,
as a Lender
By: /s/ Jonathon Austin_________________
Name: Jonathon Austin
Title: Director
[Signature Page to Second Amendment]
Consented to by:
Atlantic Union Bank,
as a Lender
By: /s/ William P. Massie_______________
Name: William P. Massie
Title: Vice President
[Signature Page to Second Amendment]
Exhibit A
Credit Agreement
(see attached)
Exhibit 1.1(c)
Form of Notice of Borrowing
(see attached)
Exhibit 1.1(d)
Form of Notice of Conversion/Extension
(see attached)
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 15, 2019
among
GPM PETROLEUM LP,
as the Borrower,
Certain Subsidiaries of the Borrower
from time to time party hereto,
as Guarantors,
CAPITAL ONE, NATIONAL ASSOCIATION,
as Administrative Agent,
KEYBANK NATIONAL ASSOCIATION
and
SANTANDER BANK, N.A.,
as Co-Syndication Agents,
and
The Lenders from time to time party hereto
CAPITAL ONE, NATIONAL ASSOCIATION,
KEYBANK CAPITAL MARKETS INC.
and
SANTANDER BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Article I DEFINITIONS 1
Section 1.1 Defined Terms 1
Section 1.2 Types of Loans 3637
Section 1.3 Other Definitional Provisions 3637
Section 1.4 Accounting Terms; GAAP 3637
Section 1.5 Time References 3738
Section 1.6 Execution of Documents 3738
Section 1.7 Divisions 3738
Section 1.8 Letter of Credit Amounts 3738
Section 1.9 Interest Rates 3839
Article II THE LOANS; AMOUNT AND TERMS 3839
Section 2.1 Revolving Loans 3839
Section 2.2 Letter of Credit Subfacility 4041
Section 2.3 Swingline Loan Subfacility 4546
Section 2.4 Fees 4748
Section 2.5 Commitment Reductions 4849
Section 2.6 Prepayments 4950
Section 2.7 Default Rate and Payment Dates 5051
Section 2.8 Conversion Options 5051
Section 2.9 Computation of Interest and Fees; Usury 5152
Section 2.10 Pro Rata Treatment and Payments 5253
Section 2.11 Non-Receipt of Funds by the Administrative Agent 5354
Section 2.12 Inability to Determine Interest Rate; Effect of Benchmark Transition Event 5456
Section 2.13 Yield Protection 5657
Section 2.14 Compensation for Losses 5759
Section 2.15 Taxes 5859
Section 2.16 Illegality 6263
Section 2.17 Mitigation Obligations; Replacement of Lenders 6264
Section 2.18 Cash Collateral 6365
Section 2.19 Defaulting Lenders 6466
Section 2.20 Incremental Revolving Facility 6769
Article III REPRESENTATIONS AND WARRANTIES 6970
Section 3.1 Financial Statements 6970
Section 3.2 No Material Adverse Effect 7071
Section 3.3 Corporate Existence; Compliance with Law; Patriot Act Information 7071
Section 3.4 Corporate Power; Authorization; Enforceable Obligations 7072
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Section 3.5 Approvals; No Conflicts; No Default 7172
Section 3.6 No Material Litigation 7173
Section 3.7 Investment Company Act 7273
Section 3.8 Margin Regulations 7273
Section 3.9 ERISA 7273
Section 3.10 Environmental Matters 7274
Section 3.11 Use of Proceeds 7375
Section 3.12 Capitalization 7475
Section 3.13 Ownership 7475
Section 3.14 [Reserved.] 7476
Section 3.15 Taxes 7476
Section 3.16 Real Property 7476
Section 3.17 Solvency 7576
Section 3.18 Compliance with FCPA and Anti-Corruption Laws 7576
Section 3.19 Material Contracts 7577
Section 3.20 Brokers’ Fees 7577
Section 3.21 Labor Matters 7677
Section 3.22 Accuracy and Completeness of Information 7677
Section 3.23 Common Enterprise 7677
Section 3.24 Insurance 7678
Section 3.25 Security Documents 7678
Section 3.26 Classification of Senior Indebtedness 7778
Section 3.27 Anti-Terrorism and Anti-Money Laundering Law Compliance 7778
Section 3.28 Responsible Officer 7779
Section 3.29 Regulation H 7779
Article IV CONDITIONS PRECEDENT 7879
Section 4.1 Conditions to Closing Date 7879
Section 4.2 Conditions to All Extensions of Credit 8284
Article V AFFIRMATIVE COVENANTS 8384
Section 5.1 Financial Statements 8384
Section 5.2 Certificates; Other Information 8485
Section 5.3 Payment of Taxes and Other Obligations 8687
Section 5.4 Existence; Conduct of Business 8688
Section 5.5 Maintenance of Property; Insurance 8688
Section 5.6 Books and Records; Inspection Rights 8789
Section 5.7 Notices 8789
Section 5.8 Environmental Laws 8890
Section 5.9 Financial Covenants 8990
Section 5.10 Additional Guarantors 8991
Section 5.11 Compliance with Law 8991
Section 5.12 Pledged Assets 9091
Section 5.13 Compliance with Terms of Leaseholds 9192
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Section 5.14 Compliance with Agreements; Maintenance of Material Contracts 9193
Section 5.15 Use of Proceeds 9193
Section 5.16 Further Assurances 9293
Section 5.17 Preparation of Environmental Reports 9293
Section 5.18 Mortgages; Primary Banking; Insurance Endorsements; Control Agreements 9294
Article VI NEGATIVE COVENANTS 9496
Section 6.1 Indebtedness 9596
Section 6.2 Liens 9698
Section 6.3 Nature of Business 99100
Section 6.4 Consolidation, Merger, Sale of Assets, etc 99100
Section 6.5 Investments, Loans and Acquisitions 100102
Section 6.6 Transactions with Affiliates 101102
Section 6.7 Ownership of Subsidiaries; Restrictions 102103
Section 6.8 Corporate Changes 102103
Section 6.9 Limitation on Restricted Actions 102104
Section 6.10 Restricted Payments 103104
Section 6.11 Amendments to Organization Documents, Material Contracts, or Fiscal Year End; Prepayments of other Indebtedness 103105
Section 6.12 Hedging Agreements 104106
Section 6.13 Sale and Leaseback 104106
Section 6.14 Anti-Terrorism Laws 104106
Article VII EVENTS OF DEFAULT 105106
Section 7.1 Events of Default 105106
Section 7.2 Acceleration; Remedies 108110
Article VIII THE ADMINISTRATIVE AGENT 109110
Section 8.1 Appointment and Authority 109110
Section 8.2 Nature of Duties 109111
Section 8.3 Exculpatory Provisions 110111
Section 8.4 Reliance by Administrative Agent 111112
Section 8.5 Notice of Default 111112
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders 111113
Section 8.7 Indemnification 112113
Section 8.8 Administrative Agent in Its Individual Capacity 112114
Section 8.9 Resignation of Administrative Agent 112114
Section 8.10 Collateral and Guaranty Matters 113115
Section 8.11 [Reserved.] 114116
Section 8.12 Agency for Perfection 114116
Section 8.13 Proof of Claim 115116
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Section 8.14 Treasury Management Agreements and Secured Hedging Agreements 115117
Article IX MISCELLANEOUS 116117
Section 9.1 Amendment or Waiver; Acceleration by Required Lenders 116117
Section 9.2 Notices 119120
Section 9.3 No Waiver; Cumulative Remedies 120122
Section 9.4 Survival of Representations and Warranties 120122
Section 9.5 Payment of Expenses and Taxes; Indemnity 120122
Section 9.6 Successors and Assigns; Participations 122124
Section 9.7 Right of Set-off; Sharing of Payments 128129
Section 9.8 Table of Contents and Section Headings 129130
Section 9.9 Counterparts; Effectiveness; Electronic Execution 129130
Section 9.10 Severability 129131
Section 9.11 Integration 130131
Section 9.12 Governing Law 130131
Section 9.13 Consent to Jurisdiction; Service of Process and Venue 130131
Section 9.14 Confidentiality 131132
Section 9.15 Acknowledgments 132133
Section 9.16 Waivers of Jury Trial 132133
Section 9.17 Patriot Act Notice 132134
Section 9.18 Resolution of Drafting Ambiguities 133134
Section 9.19 Subordination of Intercompany Debt 133134
Section 9.20 Continuing Agreement 133134
Section 9.21 Press Releases and Related Matters 133135
Section 9.22 Appointment of Borrower 134135
Section 9.23 No Advisory or Fiduciary Responsibility 134135
Section 9.24 Responsible Officers 135136
Section 9.25 Amendment and Restatement 135136
Section 9.26 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 136138
Section 9.27 Certain ERISA Matters 137138
Section 9.28 Acknowledgement Regarding Any Supported QFCs 138139
Article X GUARANTY 139141
Section 10.1 The Guaranty 139141
Section 10.2 Bankruptcy 140141
Section 10.3 Nature of Liability 140141
Section 10.4 Independent Obligation 140142
Section 10.5 Authorization 140142
Section 10.6 Reliance 141142
Section 10.7 Waiver 141142
Section 10.8 Limitation on Enforcement 142144
Section 10.9 Confirmation of Payment 142144
Section 10.10 Eligible Contract Participant 142144
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Section 10.11 Keepwell 143144
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Schedules
Schedule 1.1 Lender Commitments
Schedule 1.2 Distribution Contracts
Schedule 3.3 Patriot Act Information
Schedule 3.9 ERISA Matters
Schedule 3.12 Subsidiaries
Schedule 3.16 Real Property; Business Locations
Schedule 3.19 Material Contracts
Schedule 6.2 Liens
Schedule 9.2 Notices
Exhibits
Exhibit 1.1(a) Form of Assignment and Assumption
Exhibit 1.1(b) Form of Joinder Agreement
Exhibit 1.1(c) Form of Notice of Borrowing
Exhibit 1.1(d) Form of Notice of Conversion/Extension
Exhibit 2.1(e) Form of Revolving Loan Note
Exhibit 2.4(d) Form of Swingline Loan Note
Exhibit 2.15(a) Form of U.S. Tax Compliance Certificate
Exhibit 2.15(b) Form of U.S. Tax Compliance Certificate
Exhibit 2.15(c) Form of U.S. Tax Compliance Certificate
Exhibit 2.15(d) Form of U.S. Tax Compliance Certificate
Exhibit 4.1(h) Form of Solvency Certificate
Exhibit 5.2(a) Form of Compliance Certificate
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This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 15, 2019 (this “Agreement”), is entered into by and among GPM PETROLEUM LP, a Delaware limited partnership (together with its successors and assigns, the “Borrower”), the Guarantors (as hereinafter defined) from time to time party hereto, the Lenders (as hereinafter defined) from time to time party hereto, and CAPITAL ONE, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), and as the Issuing Lender (as defined below).
RECITALS:
WHEREAS, the Borrower and the Guarantors are party to that certain Credit Agreement, dated as of January 12, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”), among the Borrower, the guarantors party thereto from time to time, KeyBank National Association, as administrative agent, the lenders party thereto from time to time, and the other parties party thereto.
WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the Lenders mutually desire to amend and restate the Existing Credit Agreement in its entirety.
NOW, THEREOF, in consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree that the Existing Credit Agreement is hereby amended and restated in its entirety as follows:
AGREEMENT:
DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
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Applicable Margin | ||||
Level | Consolidated Total Leverage Ratio | LIBORSOFR Margin & L/C Fee | Alternate Base Rate Margin | Commitment Fee |
I | Less than 2.50 to 1:00 | 2.25% | 1.25% | 0.300% |
II | Greater than or equal to 2.50 to 1.00 but less than 3.00 to 1.00 | 2.50% | 1.50% | 0.375% |
III | Greater than or equal to 3.00 to 1.00 but less than 3.50 | 2.75% | 1.75% | 0.375% |
| to 1.00 |
|
|
|
IV | Greater than or equal to 3.50 to 1.00 but less than 4.00 | 3.00% | 2.00% | 0.500% |
| to 1.00 |
|
|
|
V | Greater than or equal to 4.00 to 1.00 | 3.25% | 2.25% | 0.500% |
The Applicable Margin shall, in each case, be determined and adjusted quarterly on the date five (5) Business Days after the date on which the Administrative Agent has received from the Borrower the quarterly financial information (in the case of the first three fiscal quarters of the Borrower’s fiscal year), the annual financial information (in the case of the fourth fiscal quarter of the Borrower’s fiscal year) and the certifications required to be delivered to the Administrative Agent and the Lenders in accordance with the provisions of Section 5.1(a), Section 5.1(b) and Section 5.2(a) (each an “Interest Determination Date”). Such Applicable Margin shall be effective from such Interest Determination Date until the next such Interest Determination Date. After the Closing Date, if the Credit Parties fail to provide the financial information or certifications in accordance with the provisions of Section 5.1(a), Section 5.1(b) and Section 5.2(a), the Applicable Margin shall, on the date five (5) Business Days after the date by which the Credit Parties were so required to provide such financial information or certifications to the Administrative Agent and the Lenders, be based on Level V until such date as such information or certifications or corrected information or corrected certificates are provided, whereupon the Level shall be determined by the then current Consolidated Total Leverage Ratio. Notwithstanding the foregoing, the initial Applicable Margin shall be determined based on the pro forma Consolidated Total Leverage Ratio as certified by a Responsible Officer of the Borrower on the Closing Date pursuant to Section 4.1(l) until the financial information and certificates required to be delivered pursuant to Section 5.1(b) and Section 5.2(a) for the first fiscal quarter to occur following the Closing Date have been delivered to the Administrative Agent, for distribution to the Lenders. In the event that any financial statement or certification delivered pursuant to Section 5.1 or Section 5.2 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, the Borrower shall immediately (a) deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (b) determine the Applicable Margin for such Applicable Period based upon the corrected Compliance
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Certificate, and (c) immediately pay to the Administrative Agent for the benefit of the Lenders the accrued additional interest and other fees owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly distributed by the Administrative Agent to the Lenders entitled thereto. It is acknowledged and agreed that nothing contained herein shall limit the rights of the Administrative Agent and the Lenders under the Credit Documents, including their rights under Section 2.7 and Section 7.1. [Notwithstanding the foregoing, as of the Specified Acquisition Closing Date, the Applicable Margin shall be determined based on the pro forma Consolidated Total Leverage Ratio (including, without limitation, giving pro forma effect to consummation of the Specified Acquisition and the transactions contemplated by the Increase Agreement and Amendment), as certified by a Responsible Officer of the Borrower on the date of the Specified Acquisition Closing Date until the financial information and certificates required to be delivered pursuant to Section 5.1(b) and Section 5.2(a) for the first fiscal quarter to occur following the Specified Acquisition Closing Date have been delivered to the Administrative Agent, for distribution to the Lenders.]
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“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to LIBOR: (a) a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; (b) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or (c) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR announcing that LIBOR is no longer representative.
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“Early Opt-in Election” shall mean the occurrence of (a) (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in this Section titled “Effect of Benchmark Transition Event,” are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and (b) (i) the election by the Administrative
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Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
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“Eurodollar Reserve Percentage” shall mean for any day, the percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of Eurocurrency liabilities, as defined in Regulation D of such Board as in effect from time to time, or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.
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“LIBOR” shall mean,
(a) For any LIBOR Rate Loan, for each Interest Period, the higher of (a) 0.00% per annum, and (b) the offered rate per annum (but not less than 0.00%) for deposits of Dollars for the applicable Interest Period that appears on Reuters Screen LIBOR01 Page (or the applicable successor page) as of 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Interest Period. If no such offered rate exists, such rate will be the rate of interest per annum, as determined by the Administrative Agent at which deposits of Dollars in immediately available funds are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Interest Period by major financial institutions reasonably satisfactory to the Administrative Agent in the London interbank market for such Interest Period for the applicable principal amount on such date of determination; and
(b) For any Alternate Base Rate Loan, the higher of (a) 0.00% per annum, and (b) the offered rate per annum (but not less than 0.00%) for deposits of Dollars for the applicable Interest Period that appears on Reuters Screen LIBOR01 Page (or the applicable successor page) as of 11:00 A.M. (London, England time) on such date of determination. If no such offered rate exists, such rate will be the rate of interest per annum, as determined by the Administrative Agent at which deposits of Dollars in immediately available funds are offered at 11:00 A.M. (London, England time) on such date of determination in such Interest Period by major financial institutions reasonably satisfactory to the Administrative Agent in the London interbank market for such Interest Period for the applicable principal amount on such date of determination.
“LIBOR Lending Office” shall mean, initially, the office(s) of each Lender designated as such Lender’s LIBOR Lending Office in such Lender’s Administrative Questionnaire; and thereafter, such other office of such Lender as such Lender may from time to time
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specify to the Administrative Agent and the Borrower as the office of such Lender at which the LIBOR Rate Loans of such Lender are to be made.
“LIBOR Rate” shall mean a rate per annum (rounded upwards, if necessary, to the next higher 1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
1.0 - Eurodollar Reserve Percentage
“LIBOR Rate Loan” shall mean Loans the rate of interest applicable to which is based on the LIBOR Rate.
“LIBOR Tranche” shall mean the collective reference to LIBOR Rate Loans whose Interest Periods begin and end on the same day.
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(i) no Default or Event of Default shall then exist or would exist after giving effect thereto;
(ii) with respect to any Material Acquisition, prior to the consummation thereof, the Required Lenders shall have consented in writing to such Material Acquisition and approved the purchase agreement and all other material definitive agreements governing such Material Acquisition;
(iii) the Credit Parties shall demonstrate to the reasonable satisfaction of the Administrative Agent that, after giving effect to the acquisition on a Pro Forma Basis, the Credit Parties are in compliance with each of the financial covenants set forth in Section 5.9;
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(iv) the Administrative Agent and the Lenders shall have received (A) a description of the material terms of such acquisition and any other information reasonably requested by the Administrative Agent, (B) in each case, to the extent available, most recently available audited financial statements or management-prepared financial statements of the Target for its two most recent fiscal years and for any fiscal quarters ended within the fiscal year to date, (C) Consolidated projected income statements of the Credit Parties and their Subsidiaries (giving effect to such acquisition), and (D) not less than five (5) Business Days prior to the consummation of any Permitted Acquisition subject to the reporting requirements of (iii) above, a certificate executed by a Responsible Officer of the Borrower certifying that such Permitted Acquisition complies with the requirements of this Agreement and that no Default or Event of Default has occurred and is continuing or would result from such acquisition; and
(v) such acquisition shall not be a “hostile” acquisition and shall have been approved by the Board of Directors (or equivalent) and/or shareholders (or equivalent) of the applicable Credit Party and the Target (to the extent required by their respective Organization Documents or applicable law).
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“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.
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Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
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THE LOANS; AMOUNT AND TERMS
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Interest on Revolving Loans shall be payable in arrears on each Interest Payment Date.
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A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under subsections (a) and (b) of this Section shall be conclusive, absent manifest error.
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and the result of any of the foregoing is to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Issuing Lender or other Recipient, the Borrower will pay to such Lender, Issuing Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
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including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section, each Lender shall be deemed to have funded each LIBOR Rate Loan made by it at the LIBOR Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such LIBOR Rate Loan was in fact so funded. With respect to Section 2.12,
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Section 2.14 and Section 2.16, each Lender shall treat the Borrower in the same manner as such Lender treats other similarly situated borrowers.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
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REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Extensions of Credit herein provided for, the Credit Parties (to the extent applicable to each such Credit Party) hereby represent and warrant to the Administrative Agent and to each Lender that:
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CONDITIONS PRECEDENT
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Each request for an Extension of Credit and each acceptance by the Borrower of any such Extension of Credit shall be deemed to constitute representations and warranties by the Credit Parties as of the date of such Extension of Credit that the conditions set forth above in paragraphs (a) through (c), as applicable, have been satisfied.
AFFIRMATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the Closing Date, and thereafter (a) for so long as this Agreement is in effect, (b) until the Commitments have terminated, and (c) the Obligations and all other amounts owing to the Administrative Agent or any Lender hereunder are paid in full in cash, such Credit Party shall, and shall cause each of their Subsidiaries, to:
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Furnish to the Administrative Agent and each of the Lenders:
Notwithstanding the foregoing, financial statements and reports required to be delivered pursuant to the foregoing provisions of this Section may be delivered electronically and if so, shall be deemed to have been delivered on the date on which the Administrative Agent receives such reports from the Borrower through electronic mail; provided that, upon the Administrative Agent’s
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request, the Borrower shall provide paper copies of any documents required hereby to the Administrative Agent.
Furnish to the Administrative Agent and each of the Lenders:
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Notwithstanding anything herein to the contrary, documents required to be delivered pursuant to Section 5.2(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the internet at the following website address www.sec.gov/edgar or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery of, or to maintain paper copies of, the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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Give notice in writing to the Administrative Agent (which shall promptly transmit such notice to each Lender) of any of the following promptly, but in any event within three (3) Business Days after any Credit Party knows thereof:
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Each notice pursuant to this Section shall be accompanied by a statement of an Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Credit Parties propose to take with respect thereto. In the case of any notice of a Default or Event of Default, the Borrower shall specify that such notice is a Default or Event of Default notice on the face thereof.
Comply with the following financial covenants:
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NEGATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the Closing Date, and thereafter (a) for so long as this Agreement is in effect, (b) until the Commitments have terminated, (c) the Obligations and all other amounts owing to the Administrative Agent or any Lender hereunder are paid in full in cash, that:
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Notwithstanding the foregoing, if a Credit Party grants a Lien on any of its assets in violation of this Section, then it shall be deemed to have simultaneously granted an equal and ratable Lien on any such assets in favor of the Administrative Agent for the ratable benefit of the Secured Parties, to the extent such Lien has not already been granted to the Administrative Agent.
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EVENTS OF DEFAULT
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THE ADMINISTRATIVE AGENT
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The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any subagents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the
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Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 9.1 and Section 7.2) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent in writing by the Borrower, a Lender or an Issuing Lender.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent consents to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent and other agents hereunder. Nothing herein contained shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lenders or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. Further, nothing contained in this Section shall affect or preclude the ability of any Lender to (i) file and prove such a claim in the event that the Administrative Agent has not acted
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within ten (10) days prior to any applicable bar date and (ii) require an amendment of the proof of claim to accurately reflect such Lender’s outstanding Obligations.
MISCELLANEOUS
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Notwithstanding the foregoing, any amendment, change, waiver or other modification to the Capital One Engagement Letter shall only require the written agreement of the parties thereto. The Administrative Agent and the Borrower may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the other Credit Documents or to enter into additional Credit Documents as the Administrative Agent reasonably deems appropriate to effectuate the terms of Section 2.12(b) in accordance with the terms of Section 2.12(b).
Any waiver or consent with respect to this Agreement given or made in accordance with this Section shall be effective only in the specific instance and for the specific purpose for which it was given or made.
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Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day). Notices delivered through electronic communications to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 2.13 and Section 9.5 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section.
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Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 9.1 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Section 2.13, Section 2.14 and Section 2.15 (subject to the requirements and limitations therein, including the requirements under Section 2.15(g) (it being understood that the documentation required under Section 2.15(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.17 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.13 or Section 2.15, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.17 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 9.7 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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For purposes of this Section, “Information” shall mean all information received from any Credit Party or any of its Subsidiaries relating to any Credit Party or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender, the Swingline Lender or the Issuing Lender on a nonconfidential basis prior to disclosure by any Credit Party or any of its Subsidiaries; provided that, in the case of information received from any Credit Party or any of its Subsidiaries after the date hereof, such information is clearly identified in writing at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
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“BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” shall mean any of the following:
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
GUARANTY
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Notwithstanding any provision to the contrary contained herein or in any other of the Credit Documents, to the extent the obligations of a Guarantor are adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of each such Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy Code).
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[Signature Pages FollowOmitted]
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