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\nAdministrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,\n(ii) to the fullest extent permitted by applicable Law, subject any Loan Party’s (other than Parent Company) or any of its Material Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be\ncovered by any of the Collateral Documents, and (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder, in each case with respect to\nperfection of the Liens under the Collateral Documents, to the extent and in the manner perfection is required to be achieved and maintained as set forth in this Agreement and the Collateral Documents.
\n6.16 Compliance with Terms of Leaseholds.
\nExcept in any case where the failure to do so, either individually or in or in the aggregate, could not reasonably be expected to have a\nMaterial Adverse Effect, make all payments and otherwise perform all obligations in respect of all leases of real property to which any Loan Party or any Material Subsidiary of any Loan Party is a party, keep such leases in full force and effect and\nnot allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the Administrative Agent of any default by any party with respect to such leases and cooperate with the Administrative Agent in\nall respects to cure any such default, and cause each of its Material Subsidiaries to do so.
6.17 Compliance with Environmental Laws.
\nComply, and cause all lessees and other Persons operating or occupying its properties to comply, with all applicable Environmental Laws and\nEnvironmental Permits, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect; obtain and renew all Environmental Permits necessary for its\noperations and properties, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect; and conduct any investigation, study, sampling and testing, and\nundertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance in all material respects with the requirements of all Environmental Laws; provided,\nhowever, that neither the Borrower nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper\nproceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.
6.18 Beneficial Ownership\nInformation.
Promptly following any request therefor, provide information and documentation reasonably requested by the\nAdministrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.\n
6.19 Anti-Corruption Laws.
\nConduct its business in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar\nanti-corruption legislation in other jurisdictions to the extent applicable to such Loan Party or such Subsidiary.
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ARTICLE VII
\nNEGATIVE COVENANTS
Each\nof the Loan Parties hereby covenants and agrees that, on the Closing Date and thereafter until the Facility Termination Date, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly, and solely in the cases of Sections\n7.13(a), 7.13(b), 7.15(b), and Section 7.19, the Parent Company shall not:
7.01 Liens.
\nCreate, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except\nfor the following (the “Permitted Liens”):
(a) Liens pursuant to any Loan Document;
\n(b) Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals or extensions thereof, provided that (i) the\nproperty covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and\n(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(b);
(c) Liens for\nTaxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect to the Taxes being contested are maintained on the books of the applicable Person in accordance with\nGAAP;
(d) Statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like\nLiens arising in the ordinary course of business which are not overdue for a period of more than thirty (30) days or which are being contested in good faith and by appropriate proceedings diligently conducted; provided that adequate\nreserves with respect thereto are maintained on the books of the applicable Person and the aggregate amount of such Liens is less than $1,000,000;
\n(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other\nsocial security legislation, other than any Lien imposed by ERISA in an aggregate amount not to exceed $1,000,000;
(f) pledges or deposits\nto secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
\n(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which do not in any case materially detract\nfrom the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
\n(h) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of\nDefault under Section 8.01(h);
(i) Liens securing Indebtedness permitted under Section 7.02(c); provided that\n(i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and the proceeds thereof and (ii) the Indebtedness secured thereby does not exceed the cost of the property being acquired on the\ndate of acquisition;
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(j) bankers’ Liens, rights of setoff and other similar Liens existing solely with\nrespect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or any of its Subsidiaries with any Lender or other bank, in each case in the ordinary course of business in favor of the bank or banks with which\nsuch accounts are maintained, securing solely the customary amounts owing to such bank with respect to cash management and operating account arrangements; provided, that in no case shall any such Liens secure (either directly or indirectly)\nthe repayment of any Indebtedness;
(k) Any interest or title of a lessor, licensor or sublessor under any lease, license or sublease\nentered into by Borrower or any Subsidiary thereof in the ordinary course of business and covering only the assets so leased, licensed or subleased;
\n(l) Any zoning, building or similar laws or rights reserved to or vested in any Governmental Authority;
\n(m) [Reserved];
(n) Liens of\nlandlords securing obligations to pay lease payments that are not overdue for a period of more than thirty (30) days or which are being contested in good faith and by appropriate proceedings diligently conducted if adequate reserves with\nrespect to the above are maintained on the books of the applicable Person; provided that the aggregate amount of such Liens is less than $2,500,000; and
\n(o) other Liens affecting property with an aggregate fair value not to exceed $2,500,000, provided that no such Lien shall extend to or\ncover any Collateral consisting of Equity Interests or Intellectual Property.
7.02 Indebtedness.
\nCreate, incur, assume or suffer to exist any Indebtedness, except:
\n(a) Indebtedness under the Loan Documents and Indebtedness under any Secured Cash Management Agreement;
\n(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or\nextensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees\nand expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in\nconnection with such refinancing, refunding, renewal or extension; and, provided further, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination, standstill and related terms (if any), and\nother material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to\nthe Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending\nIndebtedness does not exceed the then applicable market interest rate;
(c) Indebtedness in respect of Capitalized Leases, Synthetic Lease\nObligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed\n$25,000,000;
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(d) Unsecured Indebtedness of a Subsidiary of the Borrower owed to the Borrower or a\nwholly-owned Subsidiary of the Borrower, which Indebtedness shall (i) if it is owed to a Loan Party, to the extent required by the Administrative Agent, be evidenced by promissory notes which shall be pledged to the Administrative Agent as\nCollateral for the Secured Obligations in accordance with the terms of the Security Agreement, (ii) be on terms (including subordination terms) acceptable to the Administrative Agent and (iii) be otherwise permitted under the provisions of\nSection 7.03 (“Intercompany Debt”);
(e) Guarantees of the Borrower or any Subsidiary in respect of Indebtedness\notherwise permitted hereunder of the Borrower or any Guarantor (other than Parent Company);
(f) obligations (contingent or otherwise)\nexisting or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest\nrates or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
\n(g) earnout obligations incurred in connection with Permitted Acquisitions; provided, however, that the aggregate amount of all\nsuch earnout obligations at any one time outstanding shall not exceed $10,000,000;
(h) unsecured Indebtedness of Borrower owed to any\nForeign Subsidiary in an aggregate amount not to exceed $10,000,000 at any time outstanding; and
(i) other unsecured Indebtedness not\ncontemplated by the above provisions in an aggregate principal amount not to exceed $10,000,000 at any time outstanding.
7.03 Investments.\n
Make or hold any Investments, except:
\n(a) Investments held by the Borrower and its Subsidiaries in the form of (i) cash or Cash Equivalents or (ii) Investments which\ncomply with the requirements set forth in Section A and B of the Borrower’s investment policy attached hereto as Schedule 7.03 (as the same exists on the Closing Date or as the same may be amended after the date hereof with the written\nconsent of the Administrative Agent in its sole discretion);
(b) advances to officers, directors and employees of the Borrower and\nSubsidiaries in an aggregate amount not to exceed $5,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
\n(c) (i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof,\n(ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties (other than Parent Company), (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan\nParties and (iv) so long as no Default has occurred and is continuing or would result from such Investment, additional Investments by the Borrower and its Subsidiaries in Subsidiaries that are not Loan Parties in an\n
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\naggregate amount invested from the date hereof not to exceed $5,000,000, it being understood that if an Investment has been made in one or more Subsidiaries when it was not a Loan Party and such\nSubsidiary subsequently becomes a Loan Party, the Investment shall be deemed to have been made pursuant to clause (ii) and not clause (iv);
\n(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade\ncredit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
\n(e) Guarantees permitted by Section 7.02;
\n(f) Investments existing on the date hereof set forth on Schedule 7.03 (other than those referred to in another clause of this\nSection 7.03);
(g) Permitted Acquisitions (other than of CFCs and Subsidiaries held directly or indirectly by a CFC which Investments\nare covered by Section 7.03(c)(iv));
(h) Investments (including debt obligations) received in connection with the bankruptcy or\nreorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
\n(i) So long as no Default has occurred and is continuing at the time of such Investment or would result from such Investment, Investments by\nthe Borrower and its Subsidiaries in Feed Media, Inc., in an aggregate amount not to exceed $5,000,000;
(j) So long as no Default has\noccurred and is continuing at the time of such Investment or would result from such Investment, Investments by the Borrower and its Subsidiaries in Myx Fitness Holdings, LLC, in an aggregate amount (including, for the avoidance of doubt, any such\nInvestments made on or prior to the Sixth Amendment Effective Date (the “Historical Myx Investments”)) not to exceed $5,300,000 at any time; and
\n(k) so long as (A) no Default has occurred and is continuing or would result from such Investment and (B) at the time of making each\nsuch Investment and after giving effect to each such Investment, and any Borrowings made in connection therewith, Liquidity is not less than $25,000,000, other Investments of the Borrower and its Subsidiaries made in any fiscal year not exceeding\n$10,000,000 in the aggregate in such fiscal year.
At the Borrower’s option, the Historical Myx Investments may be re-classified to\nhave been made under Section 7.03(j), notwithstanding that such Investments were originally made under Section 7.03(k), and such re-classification shall reduce any prior utilization of Section 7.03(k) on a\ndollar-for-dollar basis.
7.04 Fundamental Changes.
\nMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions)\nall or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
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(a) any Subsidiary may merge with (i) the Borrower; provided that the Borrower\nshall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that when any Subsidiary Guarantor is merging with another Subsidiary, such a Subsidiary Guarantor shall be the continuing or surviving Person;\n
(b) any Loan Party (other than the Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or\notherwise) to the Borrower or to a Subsidiary Guarantor;
(c) any Subsidiary that is not a Loan Party may dispose of all or substantially\nall its assets (including any Disposition that is in the nature of a liquidation) to (i) another Subsidiary that is not a Loan Party or (ii) to a Loan Party (other than Parent Company);
\n(d) in connection with any Permitted Acquisition, any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit\nany other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned Subsidiary of the Borrower and (ii) in the case of any such merger to which any Subsidiary Guarantor\nis a party, such Subsidiary Guarantor is the surviving Person or the surviving Person becomes a Subsidiary Guarantor concurrently with the effectiveness of such merger;\nand
(e) so long as no Default has occurred and is continuing or would result therefrom, each of the Borrower and any of its Subsidiaries may merge\ninto or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided, however, that in each case, immediately after giving effect thereto (i) in the case of any such merger to which the\nBorrower is a party, the Borrower is the surviving Person and (ii) in the case of any such merger to which any Subsidiary Guarantor is a party, such Subsidiary Guarantor is the surviving Person.; and
(f)\n on or within one Business Day after the Merger Effective Date (or\nsuch later date agreed to by the Administrative Agent), each of Myx and MFEH may dissolve so long as the assets, if any, of each such Person are transferred to the Borrower or Myx Fitness concurrently therewith.
7.05 Dispositions.
\nMake any Disposition, except:
\n(a) Permitted Transfers;
(b)\nDispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(c)\nDispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to\nthe purchase price of such replacement property;
(d) Dispositions permitted by Section 7.04 or 7.06;
\n(e) [Reserved.]
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(f) Licenses (whether exclusive or non-exclusive) of trademarks owned by the Borrower or its\nSubsidiaries to non-Affiliated third parties for limited use in the production and sale of apparel, footwear and accessories; provided that (i) each such license is an arms-length transaction on fair and reasonable terms and conditions,\n(ii) each such license does not interfere in any material respect with the business of the Borrower and its Subsidiaries and (iii) each license agreement related to each such license shall (A) grant the Borrower or applicable\nSubsidiary customary termination rights for breach of laws, breach of standards imposed by the Borrower or such Subsidiary or breach of covenants or agreements under the license agreement, and (B) include customary provisions requiring the\nprotection of the trademarks that are subject to such license agreement; and
(g) other Dispositions so long as (i) at least 75% of\nthe consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (ii) such\ntransaction is not a Sale and Leaseback Transaction, (iii) such transaction does not involve the sale or other disposition of a minority Equity Interests in any Subsidiary, (iv) such transaction does not involve a sale or other disposition\nof receivables other than receivables owned by or attributable to other property concurrently being disposed of in a transaction otherwise permitted under this Section, (v) the aggregate net book value of all of the assets sold or otherwise\ndisposed of by the Borrower and its Subsidiaries in all such transactions pursuant to this clause (g) occurring after the Closing Date shall not exceed $5,000,000 during any twelve month period, and (vi) no Default shall exist or would\nresult from such Disposition.
7.06 Restricted Payments.
\nDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell\nany Equity Interests or accept any capital contributions, except that:
(a) On the Closing Date, Borrower may make up to $158,090,479.50 of\ncash Restricted Payments to consummate the LNK Redemption Transactions on the Closing Date;
(b) At all times after March 31, 2020:\n
(i) so long as no Default shall have occurred and be continuing at the time of any action described in this clause (b)(i)\nor would result therefrom, the Borrower may make any other Restricted Payment in cash so long as (A) after giving effect to such Restricted Payment, Liquidity is not less than $50,000,000, and (B) the making of any such Restricted Payment\ndoes not breach or otherwise contravene any subordination agreement or subordination provisions related thereto or to which such Restricted Payment is subject; and
\n(ii) so long as no Default shall have occurred and be continuing at the time of any action described in this clause (b)(ii) or\nwould result therefrom, each Subsidiary of the Borrower may make Restricted Payments in cash to any Person that directly owns Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in\nrespect of which such Restricted Payment is being made, so long as (A) after giving effect to such Restricted Payment, Liquidity is not less than $50,000,000, and (B) the making of any such Restricted Payment does not breach or otherwise\ncontravene any subordination agreement or subordination provisions related thereto or to which such Restricted Payment is subject;
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(c) At any time:
\n(i) with respect to time periods on or prior to June 13, 2019, the Borrower may make Permitted Tax Distributions;
\n(ii) so long as no Default shall have occurred and be continuing at the time of any action described in this clause (c)(ii) or\nwould result therefrom, the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person; and
\n(iii) on or prior to December 31, 2018, so long as no Default shall have occurred and be continuing at the time of any\naction described in this clause (c)(iii) or would result therefrom, the Borrower may pay one time transaction bonuses to certain employees, officers and directors of the Borrower in an aggregate amount not to exceed $10,500,000.00 so long as, after\ngiving effect to the payment of such bonuses, the aggregate amount of cash and Cash Equivalents of Borrower and the Subsidiary Guarantors as of such date which are unrestricted and are not subject to any Lien (other than the Lien under the Loan\nDocuments) is not less than $50,000,000;
(d) so long as no Default shall have occurred and be continuing at the time of any action\ndescribed in this clause (d) or would result therefrom:
(i) Borrower may issue or sell Equity Interests and accept\ncapital contributions, provided that such issuance or acceptance does not result or would not result in a Change of Control;
\n(ii) each Subsidiary of the Borrower may issue Equity Interests to the Borrower or a Subsidiary Guarantor, provided that such\nEquity Interests are pledged and delivered to the Administrative Agent as Collateral under the Collateral Documents to the extent set forth therein;
\n(iii) each Subsidiary of the Borrower, other than a Subsidiary Guarantor, may issue Equity Interests to another Subsidiary of\nthe Borrower, provided that Equity Interests issued to a Subsidiary Guarantor are pledged and delivered to the Administrative Agent as Collateral under the Collateral Documents to the extent set forth therein;
\n(iv) if and to the extent required by the laws of its jurisdiction, each Foreign Subsidiary of the Borrower may issue Equity\nInterests to such Persons and in such amounts as required (on a mandatory basis) by the laws of its jurisdiction; and
(v)\nthe Borrower may make the 2018 Share Redemption Restricted Payments; and
(vi) the Borrower may make on a one time basis a\ncash Restricted Payment on or prior to March 31, 2019, in an amount not to exceed $7,300,000, so long as Borrower gives the Administrative Agent prior written notice of such Restricted Payment.
\n(e) so long as no Default shall have occurred and be continuing at the time of any action described in this clause (e) or would result\ntherefrom, each Subsidiary of the Borrower may accept capital contributions from its direct owners to the extent such capital contributions are permitted to be made under this Agreement (including, without limitation, under Section 7.03) if\nmade by the Borrower or a Subsidiary of the Borrower;
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(f) notwithstanding any other provision to the contrary in this Agreement, Borrower shall be\npermitted to remit to the Parent Company the proceeds of life insurance policies on the life of Carl Daikeler, to the extent such proceeds are actually received by the Borrower, for the sole purpose of funding the redemption of\nMr. Daikeler’s shares of the Parent Company stock in the event of his death under the terms of that certain Redemption Agreement, dated March 1, 2014, as amended, by and between the Parent Company and Mr. Daikeler; and
\n(g) notwithstanding any other provision to the contrary in this Agreement, Borrower shall be permitted to remit to the Parent Company the\nproceeds of life insurance policies on the life of Jonathan Congdon, to the extent such proceeds are actually received by the Borrower, for the sole purpose of funding the redemption of Mr. Congdon’s shares of the Parent Company stock in\nthe event of his death under the terms of that certain Shareholders Agreement, dated January 2, 2000, by and among the Parent Company, Carl Daikeler and Mr. Congdon, as amended by that certain Amendment No. 1 to Shareholders Agreement\ndated June 18, 2018.
7.07 Change in Nature of Business.
\nEngage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on\nthe Closing Date or any business substantially related or incidental thereto without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld or delayed).
\n7.08 Transactions with Affiliates.
\nEnter into or permit to exist any transaction or series of transactions with any officer, director or Affiliate of such Person other than\n(a) advances of working capital to any Loan Party (other than the Parent Company), (b) intercompany transactions among the Borrower and its Subsidiaries that are expressly permitted by Section 7.04, 7.05 or 7.06, (c) normal and\nreasonable compensation and reimbursement of expenses of officers and directors, (d) the transactions described on Schedule 7.08 attached hereto (as the same exist on the Closing Date) and (e) except as otherwise specifically\nlimited in this Agreement, other transactions not involving the Parent Company which are entered into in the ordinary course of such Person’s business on fair and reasonable terms and conditions substantially as favorable to such Person as\nwould be obtainable by it in a comparable arms-length transaction with a Person other than an officer, director or Affiliate. For the avoidance of doubt, each Loan Party acknowledges and agrees that the listing of transactions and items on\nSchedule 7.08 shall not be construed to permit such transactions or items under terms of the Loan Documents, other than under this Section 7.08, and shall not be deemed to be a consent by the Lenders or the Administrative Agent to any\nsuch transaction or item under any provision of the Loan Documents, other than this Section 7.08.
7.09 Burdensome Agreements.
\nEnter into, or permit to exist, any Contractual Obligation (except for this Agreement and the other Loan Documents) that encumbers or\nrestricts the ability of any such Person to (i) to act as a Loan Party; (ii) make Restricted Payments to any Loan Party, (iii) pay any Indebtedness or other obligation owed to any Loan Party, (iv) make loans or advances to\nany Loan Party, or (v) create any Lien upon any of their properties or assets, whether now owned or hereafter acquired, except, in the case of clause (v) only, for any document or instrument governing Indebtedness incurred\npursuant to Section 7.02(c), provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith.
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7.10 Use of Proceeds.
\nUse the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or\ncarry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
\n7.11 Financial Covenants.
(a)\nMinimum Beachbody EBITDA. Permit Beachbody EBITDA as of the end of any Measurement Period ending as of the end of any fiscal quarter of the Borrower set forth below to be less than the amount set forth below opposite such fiscal quarter:
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\n| \n\n | \n | \n | \n | |
| Measurement Period Ending | \n | \nMinimum Beachbody EBITDA | \n | |
| March 31, 2020 through December 31, 2020 | \n | \n$ | \n60,000,000 | \n |
| March 31, 2021 | \n | \n$ | \n50,000,000 | \n |
| June 30, 2021 | \n | \n$ | \n38,000,000 | \n |
| September 30, 2021 | \n | \n$ | \n21,500,000 | \n |
| December 31, 2021 | \n | \n$ | \n24,000,000 | \n |
| March 31, 2022 | \n | \n$ | \n27,000,000 | \n |
(b) Minimum Liquidity. Commencing with the fiscal quarter ending March 31, 2021, permit Liquidity\nto be less than (i) $20,000,000 as of the end of any fiscal quarter of the Borrower ending during the Temporary Relief Period, and (ii) $40,000,000 as of the end of any fiscal quarter of the Borrower ending at any time other than during\nthe Temporary Relief Period.
7.12 Capital Expenditures.
\nMake or become legally obligated to make any Capital Expenditure, except for Capital Expenditures in the ordinary course of business not\nexceeding (a) $40,000,000 in the aggregate for the Borrower and its Subsidiaries during the fiscal year ending December 31, 2019, (b) $55,000,000 in the aggregate for the Borrower and its Subsidiaries during the fiscal year ending\nDecember 31, 2020, (c) $100,000,000 in the aggregate for the Borrower and its Subsidiaries during the fiscal year ending December 31, 2021, and (d) $65,000,000 in the aggregate for the Borrower and its Subsidiaries during the\nperiod from and after January 1, 2022 through and including the Maturity Date.
7.13 Amendments of Organization Documents; Sponsor Equity
(a) Amend any of its Organization Documents in any manner materially adverse to any Loan Party or any Secured Party (without limiting the generality of the foregoing, it is understood and agreed that any amendment which shortens the maturity of, or otherwise accelerates, any payment or\nredemption due to the Sponsor or any other holder of Series A Preferred Units or otherwise
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\nrequires any cash payment to be made to the Sponsor or any other holder of Series A Preferred Units which is not\nrequired under the Parent Company Operating Agreement (as the same exist on the Fourth Amendment Effective Date) shall be deemed to be an amendment that is “materially adverse” to the Loan Parties and the Secured Parties\nhereunder);;
(b) Amend any of its Sponsor Equity Documents (without limiting the generality of the foregoing, it is understood and agreed that any amendment which shortens the\nmaturity of, or otherwise accelerates, any payment or redemption due under the Sponsor Equity Documents or otherwise requires any cash payment to be made thereunder which is not required under the Sponsor Equity Documents (as the same exist on the\nClosing Date) shall be deemed to be an amendment that is “materially adverse” to the Loan Parties and the Secured Parties\nhereunder);;
(c) without providing ten (10) days prior written notice to the Administrative Agent (or such shorter period of time as agreed to by the\nAdministrative Agent), change its name, state of formation, form of organization, principal place of business or fiscal year; or
(d) make\nany change in accounting policies or reporting practices, except as permitted by GAAP.
7.14 Sale and Leaseback Transactions.
\nEnter into any Sale and Leaseback Transaction.
\n7.15 Prepayments, Etc. of Indebtedness.
\n(a) Make any payment in violation of any subordination, standstill or collateral sharing terms of or governing any Indebtedness;
\n(b) Pay or prepay any Indebtedness, if any, now or hereafter\nowed to the Sponsor or any other holder of Series A Preferred Units, whether under or with respect to the Sponsor Equity Documents or\notherwise[Reserved];
(c) At any time a Default has occurred and is continuing, (i) prepay any Indebtedness or (ii) redeem, purchase, defease or otherwise\nsatisfy prior to the scheduled maturity thereof in any manner (including by the exercise of any right of setoff) any Indebtedness, except the prepayment of the Credit Extensions in accordance with the terms of this Agreement; and
\n(d) Make any payment or prepayment (or permit any payment or prepayment to be made) on, with respect to or on account of any Indebtedness owed\nby Borrower to any Foreign Subsidiary at any time a Default has occurred and is continuing or could result from such payment or prepayment, in each case under this clause (d) regardless of whether such payment or prepayment is for principal,\ninterest or otherwise and regardless of whether such payment or prepayment is scheduled, mandatory, voluntary or otherwise. Without in any way limiting any other remedy available to the Lenders as a result of the breach of this clause (d), to the\nextent any payment or prepayment is made in contravention of this clause (d), the Borrower shall cause such payment or prepayment to be held by the Foreign Subsidiary in trust for the benefit of, and such payment or prepayment shall be turned over\nand delivered to, the Administrative Agent for application to the Obligations.
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7.16 Amendment, Etc. of Indebtedness; Amendment of Material Contracts.
\n(a) Amend, modify or change in any manner any term or condition of any Subordinated Debt Document or give any consent, waiver or approval\nthereunder;
(b) take any other action in connection with any Subordinated Debt Document that would impair the value of the interest or\nrights of any Loan Party thereunder or that would impair the rights or interests of the Administrative Agent or any Lender;
(c) amend,\nmodify or change in any manner any term or condition of any Indebtedness (other than Indebtedness arising under the Loan Documents) if such amendment or modification would add or change any terms in a manner materially adverse to any Loan Party or\nany Subsidiary taken as a whole; or
(d) amend, modify or change in any manner any term or condition of any Material Contract if such\namendment, modification or change could reasonably be expected to have a Material Adverse Effect.
7.17 Sanctions.
\nDirectly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such\nCredit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner\nthat will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer or otherwise) of Sanctions.
\n7.18 Anti-Corruption Laws.
\nDirectly or indirectly, use any Credit Extension or the proceeds of any Credit Extension for any purpose which would breach the United States\nForeign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation applicable to the Loan Parties or their Subsidiaries in other jurisdictions.
\n7.19 Holding Company.
In\nthe case of Parent Company, engage in any business or activity other than (a) the ownership of (i) Equity Interests in the Borrower and and,efmembers and
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ARTICLE VIII
\nEVENTS OF DEFAULT AND REMEDIES
8.01\nEvents of Default.
Any of the following shall constitute an Event of Default:
\n(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of\nprincipal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) within three (3) Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any\nfee due hereunder, or (iii) within five (5) Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
\n(b) Specific Covenants. (i) Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Sections\n6.01, 6.02 or 6.03, and such failure continues for five (5) days; or (ii) any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Sections 6.05(a), 6.05(c), 6.05(d), 6.08, 6.10, 6.11, 6.13, 6.14,\n6.18, Article VII or Article X; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement\n(not specified in Section 8.01(a) or (b) above) contained in this Agreement or any other Loan Document on its part to be performed or observed and such failure continues for thirty (30) days; or
\n(d) Representations and Warranties. Any representation, warranty or certification made by or on behalf of the Borrower or any other Loan\nParty in this Agreement or any other Loan Document, or in any document delivered in connection herewith or therewith, shall be incorrect or misleading in any material respect (or, with respect to any representation or warranty that contains a\nmateriality qualification, shall be incorrect or misleading in any respect) when made; or
(e) Cross-Default. (i) Any Loan\nParty or any Subsidiary thereof (A) fails to make any payment when due after the expiration of any applicable grace period (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness\nor Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or\nsyndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing,\nsecuring or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on\nbehalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
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\ndefeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become\npayable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to\nwhich a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an Affected\nParty (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or
\n(f) Insolvency Proceedings, Etc. (i) Any Loan Party or any Subsidiary thereof institutes or consents to the institution of any\nproceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; (ii) any Loan Party or any Subsidiary thereof applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator,\nrehabilitator or similar officer for it or for all or any material part of its property; (iii) any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of any\nLoan Party or any Subsidiary thereof and the appointment continues undischarged or unstayed for sixty (60) calendar days; or (iv) any proceeding under any Debtor Relief Law relating to any Loan Party or any Subsidiary thereof or to all or\nany material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or
\n(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof becomes unable or admits in writing its\ninability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not\nreleased, vacated or fully bonded within thirty (30) days after its issue or levy; or
(h) Judgments. There is entered against\nany Loan Party or any Subsidiary thereof (i) one or more judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent\nthird-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim and does not dispute coverage), or (ii) any one or more non-monetary judgments that have, or could\nreasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of ten\n(10) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
\n(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be\nexpected to result in liability of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay\nwhen due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or\n
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(j) Default Under or Invalidity of Loan Documents. (i) Any provision of any Loan\nDocument, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations arising under the Loan Documents, ceases to be in full force and effect;\nor (ii) any Loan Party, any Subsidiary of any Loan Party, any Affiliate or shareholder of any Loan Party, or any other officer, director, representative or agent of any of the foregoing contests in any manner the validity or enforceability of\nany provision of any Loan Document; or (iii) any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or\nit is or becomes unlawful for a Loan Party to perform any of its obligations under the Loan Documents; or
(k) Collateral Documents.\nAny Collateral Document after delivery thereof pursuant to the terms of the Loan Documents shall for any reason cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on a material portion of the Collateral purported\nto be covered by the Collateral Documents (unless perfection of such Lien is not otherwise required under this Agreement or the Collateral Documents), or any Loan Party shall assert the invalidity of such Liens; or
\n(l) Change of Control. There occurs any Change of Control; or
\n(m) Uninsured Loss. Any uninsured damage to or loss, theft or destruction of any assets of the Loan Parties or any of their Subsidiaries\nshall occur that is in excess of the Threshold Amount; or
(n) Subordination. (i) Any of the subordination, standstill, payover\nand insolvency related provisions of any of the Subordinated Debt Documents (the “Subordinated Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against\nany holder of the applicable Subordinated Debt; or (ii) the Borrower, any other Loan Party or any other Person shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the\nSubordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Administrative Agent and the Secured Parties or (C) that all payments of principal of or premium and interest on the applicable Subordinated Debt,\nor realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions;\nor
\n(o)\n[Reserved]; or
\n(p) Required Redemption of Equity Interests of\nSponsor. Sponsor (or any of its successors or assigns) or any other holder of Series A Preferred Units exercises any option to require the redemption of any Series A Preferred Units or other preferred Equity Interests it owns or holds\nprior to December 14, 2024; or
(q) Resolution with FTC or other Governmental Authorities. Any Loan Party or any Subsidiary thereof becomes party or subject\nto a consent decree, agreement, public closing letter imposing explicit restrictions on business operations, administrative or judicial order, final judgment, and/or permanent injunction (each, a “Resolution”), with or by the\nFederal Trade Commission or any Governmental Authority, where the entering into or effectiveness of such Resolution could reasonably be expected to have a Material Adverse Effect.
\nWithout limiting the provisions of Article IX, if a Default shall have occurred under the Loan Documents, then such Default will continue to\nexist until it either is cured (to the extent specifically permitted) in accordance with the Loan Documents or is otherwise expressly waived by Administrative Agent (with the approval of requisite Lenders (in their sole discretion) as determined in\naccordance with Section 11.01; and once an Event of Default occurs under the Loan Documents, then such Event of Default will continue to exist until it is expressly waived by the requisite Lenders or by the Administrative Agent with the\napproval of the requisite Lenders, as required hereunder in Section 11.01.
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8.02 Remedies upon Event of Default.
\nIf any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required\nLenders, take any or all of the following actions:
(a) declare the Commitment of each Lender to make Loans and any obligation of the L/C\nIssuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the\nunpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or\nother notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the\nL/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(d) exercise on behalf of itself, the\nLenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable Law or equity;
\nprovided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the\nBankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest\nand other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the\nAdministrative Agent or any Lender.
8.03 Application of Funds.
\nAfter the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and\nthe L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02) or if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all Secured\nObligations then due hereunder, any amounts received on account of the Secured Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the Administrative Agent in the following order:
\nFirst, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts\n(including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
\nSecond, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other\nthan principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may\nbe employees of any Lender or the L/C Issuer) arising under the Loan Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;
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Third, to payment of that portion of the Secured Obligations\nconstituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Secured Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts\ndescribed in this clause Third payable to them;
Fourth, to payment of that portion of the Secured Obligations\nconstituting unpaid principal of the Loans, L/C Borrowings and Secured Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements and to the Administrative Agent for the account of the L/C Issuer, to Cash\nCollateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.14, in each case ratably among the\nAdministrative Agent, the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them; and
\nLast, the balance, if any, after all of the Secured Obligations have been paid in full, to the Borrower or as otherwise\nrequired by Law.
Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to\nclause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining\namount shall be applied to the other Secured Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate\nadjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth above in this Section.
\nNotwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the\napplication described above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank,\nas the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the\nAdministrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE\nIX
ADMINISTRATIVE AGENT
9.01\nAppointment and Authority.
(a) Appointment. Each of the Lenders and the L/C Issuer hereby irrevocably appoints,\ndesignates and authorizes Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are\ndelegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and\nthe L/C Issuer, and neither the Borrower nor any other Loan Party shall
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\nhave rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other\nsimilar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom,\nand is intended to create or reflect only an administrative relationship between contracting parties.
(b) Collateral Agent. The\nAdministrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuer hereby\nirrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of\nthe Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by\nthe Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the\ndirection of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral\nagent” under the Loan Documents) as if set forth in full herein with respect thereto.
9.02 Rights as a Lender.
\nThe Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender\nand may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the\nAdministrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind\nof banking, trust, financial, advisory, underwriting or other business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the\nLenders or to provide notice to or consent of the Lenders with respect thereto.
9.03 Exculpatory Provisions.
\nThe Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and\nits duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent and its Related Parties:
\n(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
\n(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers\nexpressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for\nherein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary\nto any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a\nDefaulting Lender in violation of any Debtor Relief Law; and
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(c) shall not, except as expressly set forth herein and in the other Loan Documents, have\nany duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or\nany of its Affiliates in any capacity.
Neither the Administrative Agent nor any of its Related Parties shall be liable for any action\ntaken or not taken by the Administrative Agent under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the Required Lenders (or such\nother number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence of its own\ngross 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\nDefault is given in writing to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
Neither the Administrative Agent nor\nany of its Related Parties have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan\nDocument, (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\nconditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,\nperfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than\nto confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent.
\nThe Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying\nupon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have\nbeen signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully protected in\nrelying and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled\nto the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender\nor the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by it,\nand shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that\nhas signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the\nAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objections.
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9.05 Delegation of Duties.
\nThe Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by\nor 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\nexculpatory 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 Facility\nas well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable\njudgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06 Resignation of\nAdministrative Agent.
(a) Notice. The Administrative Agent may at any time give notice of its resignation to the Lenders,\nthe L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an\nAffiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent\ngives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders\nand the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed,\nsuch resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) Effect of\nResignation. With effect from the Resignation Effective Date (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral\nsecurity held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative\nAgent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent\nshall instead be made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as\nAdministrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to\nindemnity payments or other amounts owed to the retiring Administrative Agent as of the Resignation Effective Date), and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan\nDocuments (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a
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\nsuccessor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative\nAgent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its\nsub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while (i) the retiring Administrative Agent was acting as Administrative Agent and\n(ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including, without limitation, (A) acting as collateral agent or otherwise\nholding any collateral security on behalf of any of the Secured Parties and (B) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
\n(c) L/C Issuer. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its\nresignation as L/C Issuer. If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its\nresignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c). Upon the appointment by\nthe Borrower of a successor L/C Issuer hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the\nretiring L/C Issuer, (ii) the retiring L/C Issuer shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for\nthe Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
\n9.07 Non-Reliance on Administrative Agent and Other Lenders.
\nEach Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender\nor any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,\nindependently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in\ntaking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
\n9.08 No Other Duties, Etc.
\nAnything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof shall have any powers, duties or\nresponsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
\n9.09 Administrative Agent May File Proofs of Claim; Credit Bidding.
\nIn case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the\nAdministrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any\ndemand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the principal and interest owing and\nunpaid in respect of the Loans, L/C Obligations and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the\nAdministrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the\nLenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i), 2.09, and 11.04) allowed in such judicial proceeding; and
\n(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
\nand any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by\neach Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative\nAgent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04.
\nNothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any\nLender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any\nLender or the L/C Issuer or in any such proceeding.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the\ndirection of the Required Lenders, to credit bid all or any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or\notherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States,\nincluding under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale or foreclosure or acceptance of collateral in lieu\nof debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Secured\nObligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a\nratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity\nInterests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to\nmake a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of\nthe assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders\ncontained in clauses (a) through (i) of Section
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\n11.01 of this Agreement, and (iii) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of\nanother bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be\nreassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without\nthe need for any Secured Party or any acquisition vehicle to take any further action.
9.10 Collateral and Guaranty Matters.\n
Each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer\nirrevocably authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or\nheld by the Administrative Agent under any Loan Document (i) upon the Facility Termination Date, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other\ndisposition permitted hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in writing by the Required Lenders in accordance with Section 11.01;
\n(b) to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on\nsuch property that is permitted by Section 7.01(i); and
(c) to release any Guarantor from its obligations under the Guaranty if such\nPerson ceases to be a Material Subsidiary as a result of a transaction permitted under the Loan Documents.
Upon request by the\nAdministrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its\nobligations under the Guaranty pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as\nsuch Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from\nits obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.
The\nAdministrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the\nAdministrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the\nCollateral.
\n| 9.11 | \n Secured Cash Management Agreements and Secured Hedge Agreements.\n |
Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of\nthe provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any\nother Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any
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\namendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly\nprovided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to,\nSecured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured\nObligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or\nthat other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of a Facility Termination Date.
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\n| 9.12 | \n Lender ERISA Representations. |
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the\ndate such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan\nParty, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets”\n(within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments\nor this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for\ncertain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions\ninvolving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers),\nis applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
\n(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the\nmeaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and\nthis Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of\nPTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the\nLoans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant\nas may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
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(b) In addition, unless either (1) sub-clause (i) in the immediately preceding\nclause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents\nand warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the\nAdministrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s\nentrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this\nAgreement, any Loan Document or any documents related hereto or thereto).
9.13 Recovery of Erroneous Payments. Without limitation of any\nother provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender or the L/C Issuer (the “Credit Party”), whether or not in respect of an Obligation due and owing by the Borrower at\nsuch time, where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Credit\nParty in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at the\ngreater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each Credit Party irrevocably waives any and all defenses, including any “discharge for\nvalue” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent\nshall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part, a Rescindable Amount.
\nARTICLE X
CONTINUING\nGUARANTY
10.01 Guaranty.
\nEach Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and\nperformance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations (for each\nGuarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor\nand (b) the liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548\nof the Bankruptcy Code of the United States or any comparable provisions of any applicable state law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or\nportion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any Loan Party under any Debtor Relief Laws. The Administrative\nAgent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured\nObligations. This Guaranty shall not be affected by the
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\ngenuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability,\nperfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty,\nand each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
\n10.02 Rights of Lenders.
\nEach Guarantor consents and agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without\naffecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Secured Obligations or any part thereof; (b) take,\nhold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Secured Obligations; (c) apply such security and direct the order or manner of sale thereof as the\nAdministrative Agent, the L/C Issuer and the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Secured Obligations. Without limiting the generality of\nthe foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of\nsuch Guarantor.
10.03 Certain Waivers.
\nEach Guarantor waives (a) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the\ncessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any other Loan Party; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more\nburdensome than those of the Borrower or any other Loan Party; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower or any other Loan Party, proceed\nagainst or exhaust any security for the Secured Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any Secured Party;\nand (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all\nsetoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with\nrespect to the Secured Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Secured Obligations.
\n10.04 Obligations Independent.
\nThe obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Secured\nObligations and the obligations of any other guarantor, and a separate action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party.
\n10.05 Subrogation.
\nNo Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it\nmakes under this Guaranty until all of the Secured Obligations and any amounts payable under this Guaranty have been paid and performed in full and the Commitments and the Facility are terminated. If any amounts are paid to a Guarantor in violation\nof the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Secured Obligations, whether matured or unmatured.
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10.06 Termination; Reinstatement.
\nThis Guaranty is a continuing and irrevocable guaranty of all Secured Obligations now or hereafter existing and shall remain in full force and\neffect until the Facility Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the\nSecured Parties exercises its right of setoff, in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required\n(including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such\npayment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of\neach Guarantor under this paragraph shall survive termination of this Guaranty.
10.07 Stay of Acceleration.
\nIf acceleration of the time for payment of any of the Secured Obligations is stayed, in connection with any case commenced by or against a\nGuarantor or the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally, immediately upon demand by the Secured Parties.
\n10.08 Condition of Borrower.
\nEach Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any\nother guarantor such information concerning the financial condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires, and that none of the Secured Parties has any duty, and such Guarantor is not\nrelying on the Secured Parties at any time, to disclose to it any information relating to the business, operations or financial condition of the Borrower or any other guarantor (each Guarantor waiving any duty on the part of the Secured Parties to\ndisclose such information and any defense relating to the failure to provide the same).
10.09 Appointment of Borrower.
\nEach of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all\nother documents and electronic platforms entered into in connection herewith and agrees that (a) the Borrower may execute such documents and provide such authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its\nsole discretion and each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Administrative Agent, L/C Issuer or a Lender to the\nBorrower shall be deemed delivered to each Loan Party and (c) the Administrative Agent, L/C Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower on behalf\nof each of the Loan Parties.
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10.10 Right of Contribution.
\nThe Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against\nthe other Guarantors as permitted under applicable Law.
10.11 Keepwell.
\nEach Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien under the Loan Documents, in each case, by\nany Specified Loan Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to\nsuch Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that\ncan be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount).\nThe obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Secured Obligations have been paid and performed in full. Each Loan Party intends this Section to constitute, and\nthis Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
\nARTICLE XI
\nMISCELLANEOUS
11.01\nAmendments, Etc.
Subject to Section 3.03, no amendment or waiver of any provision of this Agreement\nor any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required\nLenders) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;\nprovided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or\nreinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent in Section 4.02 or of any Default or a mandatory reduction in\nCommitments is not considered an extension or increase in Commitments of any Lender);
(b) postpone any date fixed by this Agreement or any\nother Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under such other Loan Document without the written consent of each Lender entitled\nto such payment;
(c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to\nclause (iii) of the proviso immediately following Section 11.01(h)) any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender entitled to such amount; provided,\nhowever, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;
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(d) change Section 8.03 in a manner that would alter the pro rata sharing of payments\nrequired thereby without the written consent of each Lender;
(e) change any provision of this Section 11.01 or the definition of\n“Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or thereunder or make any determination or grant any consent\nhereunder, without the written consent of each Lender;
(f) release all or substantially all of the Collateral in any transaction or series\nof related transactions, without the written consent of each Lender;
(g) release all or substantially all of the value of the Guaranty,\nwithout the written consent of each Lender, except to the extent the release of any Material Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);\nor
(h) release the Borrower or permit the Borrower to assign or transfer any of its rights or obligations under this Agreement or the\nother Loan Documents without the consent of each Lender;
and provided, further, that (i) no amendment, waiver or consent shall, unless\nin writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no\namendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and\n(iii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, (A) no Defaulting Lender shall have any right to approve or\ndisapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than\nDefaulting Lenders), except that (1) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (2) any waiver, amendment or modification requiring the consent of all Lenders or each\naffected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (B) each Lender is entitled to vote as such Lender sees fit on\nany bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and\n(C) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders.
\nNotwithstanding anything to the contrary herein, (a) this Agreement may be amended and restated without the consent of any Lender (but with the consent\nof the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such\nLender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement, and (b) the Administrative Agent may\namend or modify this Agreement and any other Loan Document to (i) cure any ambiguity, omission, mistake, defect or inconsistency therein (but only with the prior consent of the Borrower) or (ii) grant a new Lien for the benefit of the\nSecured Parties, extend an existing Lien over additional property for the benefit of the Secured Parties or join additional Persons as Loan Parties.
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If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan\nDocument that requires the consent of each Lender and that has been approved by the Required Lenders, the Borrower may replace such Non-Consenting Lender in accordance with Section 11.13; provided that such amendment, waiver, consent or\nrelease can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).
\n11.02 Notices; Effectiveness; Electronic Communications.
\n(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except\nas provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission\nor e-mail transmission as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
\n(i) if to the Borrower or any other Loan Party, the Administrative Agent or the L/C Issuer, to the address, fax number, e-mail\naddress or telephone number specified for such Person on Schedule 1.01(a); and
(ii) if to any Lender, to the\naddress, fax number, e-mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for\nthe delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other\ncommunications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by fax transmission shall be deemed to have been given when\nsent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic\ncommunications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).
(b)\nElectronic Communications. Notices and other communications to the Administrative Agent, the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail, FPML messaging and Internet or\nintranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as\napplicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, the L/C Issuer or the Borrower may each, in its discretion, agree to accept notices\nand 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.
\nUnless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address\nshall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and\n(ii) notices and other communications posted to an Internet or intranet website shall be deemed received by the intended recipient upon the sender’s receipt of an acknowledgement from the intended recipient\n
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\n(such as by the “return receipt requested” function, as available, return e-mail address or other written acknowledgement) indicating that such notice or communication is available and\nidentifying the website address therefor; provided that for both clauses (i) and (ii), if such notice or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be\ndeemed to have been sent at the opening of business on the next Business Day for the recipient.
(c) The Platform. THE PLATFORM IS\nPROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR\nOMISSIONS FROM THE BORROWER MATERIALS. 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\nDEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the\nBorrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative\nAgent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.
\n(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent and the L/C Issuer may change its address, fax number or\ntelephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, fax number or telephone number or e-mail address for notices and other communications\nhereunder by notice to the Borrower, the Administrative Agent and the L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective\naddress, contact name, telephone number, fax number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one\n(1) individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its\ndelegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public\nSide Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.
\n(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled\nto rely and act upon any notices (including, without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit Applications and Notices of Loan Prepayment) purportedly given by or on behalf of any Loan Party even if (i) such\nnotices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.\nThe Loan Parties shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly\ngiven by or on behalf of a Loan Party. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
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11.03 No Waiver; Cumulative Remedies; Enforcement.
\nNo failure by any Lender, the L/C Issuer, the Administrative Agent or the Loan Parties to exercise, and no delay by any such Person in\nexercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan\nDocument preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not\nexclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in\nany other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such\nenforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing shall not prohibit\n(a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer from\nexercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the\nterms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided,\nfurther, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to\nSection 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and\nremedies available to it and as authorized by the Required Lenders.
11.04 Expenses; Indemnity; Damage Waiver.
\n(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent\nand its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery\nand administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all\nreasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred\nby the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall pay all reasonable fees and time charges for attorneys who\nmay be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this\nSection, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit, provided\nfees and time charges of attorneys who are employees shall only be charged if outside counsel is not retained.
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(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the\nAdministrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless\nfrom, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all reasonable fees\nand time charges and disbursements for attorneys who may be employees of any Indemnitee (provided fees and time charges of attorneys who are employees shall only be charged if outside counsel is not retained) incurred by any Indemnitee or asserted\nagainst any Indemnitee by any Person (including the Borrower or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument\ncontemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and\nany sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or\nproposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of\nCredit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of\nits Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any\nother Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be\navailable to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful\nmisconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for a material breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document,\nif the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Without limiting the provisions of Section 3.01(c), this Section 11.04(b)\nshall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
\n(c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under\nsubsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or\nany such sub-agent), the L/C Issuer 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 based on each Lender’s share of\nthe Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lender’s Applicable Percentage\n(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided, further that, the unreimbursed expense or indemnified loss, claim, damage,\n
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\nliability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any\nRelated Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or the L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of\nSection 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, no Loan Party\nshall assert, and each Loan Party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual\ndamages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of\nthe proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such\nIndemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages\nresulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
\n(e) Payments. All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor.
\n(f) Survival. The agreements in this Section and the indemnity provisions of Section 11.02(e) shall survive the resignation of the\nAdministrative Agent and the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
\n11.05 Payments Set Aside.
\nTo the extent that any payment by or on behalf of the Borrower or any other Loan Party is made to the Administrative Agent, the L/C Issuer or\nany Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set\naside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any\nDebtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such\nsetoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent,\nplus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the\npreceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
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11.06 Successors and Assigns.
\n(a) Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to\nthe benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the\nprior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of\nthis Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this\nSection (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective\nsuccessors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the\nLenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender\nmay at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes of this\nsubsection (b), participations in L/C Obligations) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
\n(i) Minimum Amounts.
\n(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at\nthe time owing to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such Assignments) that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an\nassignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any\ncase not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the\nLoans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the\nAssignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to\nbe unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an\nassignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement and the other Loan Documents with respect to the Loans and/or the Commitment assigned.
\n(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection\n(b)(i)(B) of this Section and, in addition:
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(A) the consent of the Borrower (such consent not to be unreasonably\nwithheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that\nthe Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
\n(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for\nassignments in respect of any Commitment if such assignment is to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender; and
\n(C) the consent of the L/C Issuer shall be required.
\n(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an\nAssignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the\ncase of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
\n(v) No Assignment to Certain Persons. No such assignment shall be made (A) to any Loan Party or any Affiliate or\nSubsidiary of any Loan Party, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (C) to a natural Person\n(or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) or (D) any holder of Subordinated Debt.
\n(vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender\nhereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount\nsufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the\nAdministrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in full all\npayment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and\nparticipations in Letters of Credit in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable\nLaw without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
\nSubject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date\nspecified 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,\nand the
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\nassigning 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\nAssignment 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 Sections 3.01, 3.04, 3.05 and 11.04\nwith respect to facts and circumstances occurring prior to the effective date of such assignment); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a\nwaiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by\na Lender of rights or obligations under this Agreement that does not comply with this subsection 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\nsubsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary\nagent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register\nfor the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the\n“Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms\nhereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
\n(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell\nparticipations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender or any Loan Party or any Affiliate or Subsidiary\nof any Loan Party) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s\nparticipations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the\nperformance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this\nAgreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participations.
\nAny agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain\nthe 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\nParticipant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04\nand 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the\nparticipation)) 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 Sections\n3.06 and 11.13 as if it were an assignee under paragraph
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\n(b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the\napplicable participation 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\nsells 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 3.06 with respect to any Participant. To the extent permitted by law,\neach Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a\nparticipation 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\ninterest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the\nidentity 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 Loan Document) to any Person except to the extent that such disclosure is\nnecessary 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\nabsent 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\ndoubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
\n(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this\nAgreement (including under its Note or Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such\nLender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f)\nResignation as L/C Issuer after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, upon\nthirty (30) days’ notice to the Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder;\nprovided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers,\nprivileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to\nmake Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). Upon the appointment of a successor L/C Issuer, (A) such successor shall succeed to and become vested with all of the rights, powers,\nprivileges and duties of the retiring L/C Issuer, and (B) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements\nsatisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
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11.07 Treatment of Certain Information; Confidentiality.
\n(a) Treatment of Certain Information. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the\nconfidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliates, its auditors and its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed\nof the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties\n(including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iii) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (iv) to any other party\nhereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,\n(vi) subject to an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this\nAgreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16(c) or Section 11.01 or (B) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments\nare to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (vii) on a confidential basis to the provider of any Platform or other electronic delivery service used by the Administrative Agent and/or\nthe L/C Issuer to deliver Borrower Materials or notices to the Lenders, or (viii) with the consent of the Borrower or to the extent such Information (1) becomes publicly available other than as a result of a breach of this Section or\n(2) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. For purposes of this Section, “Information”\nmeans all information received from the Borrower or any Subsidiary or any of their respective agents, advisors, attorneys or accountants relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such\ninformation that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary or any of their respective agents, advisors, attorneys or accountants,\nprovided that, in the case of information received from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality\nof 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\nown confidential information. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and\nservice providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents and the Commitments.
\n(b) Non-Public Information. Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (i) the Information\nmay include material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance procedures regarding the use of material non-public information and (iii) it will handle such\nmaterial non-public information in accordance with applicable Law, including United States federal and state securities Laws.
(c) Press\nReleases. The Loan Parties and their Affiliates agree that they will not in the future issue any press releases or other public disclosure using the name of the Administrative Agent or any Lender or their respective Affiliates or referring to\nthis Agreement or any of the Loan Documents without the prior written consent of the Administrative Agent, unless (and only to the extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event the Loan Parties\nor such Affiliate will consult with such Person before issuing such press release or other public disclosure.
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(d) Customary Advertising Material. The Loan Parties consent to the publication by\nthe Administrative Agent or any Lender of customary advertising material relating to the transactions contemplated hereby using the name, product photographs, logo or trademark of the Loan Parties; provided that the Administrative Agent or such\nLender, as applicable, has received the prior written consent of the Borrower for such publication, which consent shall not be unreasonably withheld or delayed.
\n11.08 Right of Setoff.
\nIf an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby\nauthorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other\nobligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan\nParty now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, the L/C Issuer or Affiliate shall have made any demand under\nthis Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer different\nfrom the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over\nimmediately to the Administrative Agent for further application in accordance with the provisions of Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the\nbenefit of the Administrative Agent, the L/C Issuer and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting\nLender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the\nL/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not\naffect the validity of such setoff and application.
11.09 Interest Rate Limitation.
\nNotwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall\nnot exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest\nshall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum\nRate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and\n(c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
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11.10 Counterparts; Integration; Effectiveness.
\nThis Agreement and each of the other Loan Documents may be executed in counterparts (and by different parties hereto in different\ncounterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the\nAdministrative Agent or the L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.\nExcept as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the\nsignatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document, or any certificate delivered thereunder, by fax transmission or e-mail transmission (e.g.\n“pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement or such other Loan Document or certificate. Without limiting the foregoing, to the extent a manually executed counterpart is not\nspecifically required to be delivered under the terms of any Loan Document, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
\n11.11 Survival of Representations and Warranties.
\nAll representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in\nconnection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by\nthe Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and\neffect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
\n11.12 Severability.
\nIf any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity\nand enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or\nunenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or\nrender unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be\nlimited by Debtor Relief Laws, as determined in good faith by the Administrative Agent or the L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
\n11.13 Replacement of Lenders.
\nIf the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a\nNon-Consenting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative\nAgent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights (other than its existing rights to\npayments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such\nassignment), provided that:
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(a) the Borrower shall have paid to the Administrative Agent the assignment fee (if any)\nspecified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to 100% of the outstanding principal of\nits Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding\nprincipal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment\nresulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
\n(d) such assignment does not conflict with applicable Laws; and
\n(e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the\napplicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a\nresult of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
\n11.14 Governing Law; Jurisdiction; Etc.
\n(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN)\nAND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH\nTHEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
\n(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE\nANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY\nRELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN\nDISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH\n
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\nACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO\nAGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN\nDOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR\nITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND\nUNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN\nANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF\nSUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS\nIN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
\n11.15 Waiver of Jury Trial.
\nEACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY\nLEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO\n(a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES\nTHAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
\n11.16 Subordination.
Each\nLoan Party (a “Subordinating Loan Party”) hereby subordinates the payment of all obligations and indebtedness (other than Permitted Tax Distributions) of any other Loan Party owing to it, whether now existing or hereafter arising,\nincluding but not limited to any obligation of any such other Loan Party to the Subordinating Loan Party as subrogee of the Secured Parties or resulting from such Subordinating Loan Party’s performance under the Guaranty, to the indefeasible\npayment in full in cash of
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\nall Obligations. If the Secured Parties so request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party shall be enforced and performance received by\nthe Subordinating Loan Party as trustee for the Secured Parties, and the proceeds thereof shall be paid over to the Secured Parties on account of the Secured Obligations, but without reducing or affecting in any manner the liability of the\nSubordinating Loan Party under this Agreement. Without limitation of the foregoing, so long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with respect to Intercompany Debt; provided, that in the\nevent that any Loan Party receives any payment of any Intercompany Debt at a time when such payment is prohibited by this Section, such payment shall be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and\ndelivered, upon written request, to the Administrative Agent.
11.17 No Advisory or Fiduciary Responsibility.
\nIn connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other\nmodification hereof or of any other Loan Document), the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this\nAgreement provided by the Administrative Agent and any Affiliate thereof, the Arranger and the Lenders are arm’s-length commercial transactions between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and\nthe Administrative Agent and, as applicable, its Affiliates (including the Arranger) and the Lenders and their Affiliates (collectively, solely for purposes of this Section, the “Lenders”), on the other hand, (ii) each of the\nBorrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party is capable of evaluating, and understands and\naccepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) the Administrative Agent and its Affiliates (including the Arranger) and each Lender each is and has been acting\nsolely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for Borrower, any other Loan Party or any of their respective Affiliates, or\nany other Person and (ii) neither the Administrative Agent, any of its Affiliates (including the Arranger) nor any Lender has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the\ntransactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent and its Affiliates (including the Arranger) and the Lenders may be engaged in a broad range\nof transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent, any of its Affiliates (including the Arranger) nor any Lender has any\nobligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any claims\nthat it may have against the Administrative Agent, any of its Affiliates (including the Arranger) or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated\nhereby.
11.18 Electronic Execution.
\nThe words “delivery,” “execute,” “execution,” “signed,” “signature,” and words of like import\nin any Loan Document or any other document executed in connection herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative\nAgent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the\ncase may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other\n
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\nsimilar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation\nto agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it; provided, further, without limiting the foregoing, upon the request of the\nAdministrative Agent, any electronic signature shall be promptly followed by such manually executed counterpart. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the\nAdministrative Agent and each of the Secured Parties of a manually signed paper document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a\n“Communication”) which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Borrower\nhereby acknowledges the receipt of a copy of this Agreement and all other Loan Documents. The Administrative Agent and each Lender may, on behalf of the Borrower, create a microfilm or optical disk or other electronic image of this Agreement and any\nor all of the other Loan Documents. The Administrative Agent and each Lender may store the electronic image of this Agreement and the other Loan Documents in its electronic form and then destroy the paper original as part of the Administrative\nAgent’s and each Lender’s normal business practices, with the electronic image deemed to be an original and of the same legal effect, validity and enforceability as the paper originals.
\n11.19 USA PATRIOT Act Notice.
\nEach Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)\nhereby notifies the Borrower and the other Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and\nrecord information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in\naccordance with the Act. The Borrower and the Loan Parties agree to, promptly following a request by the Administrative Agent or any Lender, provide all such other documentation and information that the Administrative Agent or such Lender requests\nin order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
\n11.20 Time of the Essence.
\nTime is of the essence of the Loan Documents.
\n11.21 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
\nSolely to the extent any Lender or L/C Issuer that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to\nthe contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or L/C Issuer that is an EEA Financial Institution arising under any\nLoan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
\n(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may\nbe payable to it by any Lender or L/C Issuer that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such\nliability, including, if applicable:
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(i) a reduction in full or in part or cancellation of any such liability;\n
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA\nFinancial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any\nsuch liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in\nconnection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
11.22 Acknowledgement Regarding Any\nSupported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap\nContract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution\npower of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special\nResolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State\nof New York and/or of the United States or any other state of the United States): In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special\nResolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or\nsuch QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and\nrights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime,\nDefault Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be\nexercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that\nrights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed\nas of the date first above written.
\n| \n\n | \n | \n\n | \n | \n\n | \n | |
| BORROWER: | \n | \n\n | | \n BEACHBODY, LLC, a Delaware limited\nliability company | ||
| \n | \n | \n | ||||
| \n | | \n\n | | \nBy: | \n | \n |
| \n | | \n\n | | \nName: | \n | \nSue Collyns |
| \n | | \n\n | | \nTitle: | \n | \nChief Financial Officer and Treasurer |
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\n\n\n
\n\n\n
| \n\n | \n | \n\n | \n | \n\n | \n | |
| GUARANTORS: | \n | \n\n | | \nBEACHBODY HOLDINGS, INC., | ||
| \n | | \n\n | | \na California corporation | ||
| \n | \n | \n | ||||
| \n | | \n\n | | \nBy: | \n | \n |
| \n | | \n\n | | \nName: | \n | \nSue Collyns |
| \n | | \n\n | | \nTitle: | \n | \nChief Financial Officer and Treasurer |
| \n | \n | |||||
| \n | | \n\n | | \nOpenFit, LLC, | ||
| \n | | \n\n | | \na Delaware limited liability company | ||
| \n | \n | \n | ||||
| \n | | \n\n | | \nBy: | \n | \n |
| \n | | \n\n | | \nName: | \n | \nSue Collyns |
| \n | | \n\n | | \nTitle: | \n | \nChief Financial Officer |
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\n\n\n
\n\n\n
| \n\n | \n | |
| BANK OF AMERICA, N.A., | ||
| as Administrative Agent | ||
| \n | ||
| By: | \n | \n |
| Name: | \n | \nKevin Trieber |
| Title: | \n | \nSenior Vice President |
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\n\n\n
\n\n\n
| \n\n | \n | |
| BANK OF AMERICA, N.A., | ||
| as a Lender and L/C Issuer | ||
| \n | ||
| By: | \n | \n |
| Name: | \n | \nKevin Trieber |
| Title: | \n | \nSenior Vice President |
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