Form 8-K
8-K — UGI CORP /PA/
Accession: 0001104659-26-081321
Filed: 2026-07-07
Period: 2026-06-30
CIK: 0000884614
SIC: 4932 (GAS & OTHER SERVICES COMBINED)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Financial Statements and Exhibits
Documents
8-K — ugi-20260630x8k.htm (Primary)
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XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: ugi-20260630x8k.htm · Sequence: 1
UGI CORP /PA/_June 30, 2026
0000884614falseUGI CORP /PA/00008846142026-06-302026-06-30
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 30, 2026
UGI Corporation
(Exact Name of Registrant as Specified in Its Charter)
Pennsylvania
(State or Other Jurisdiction
of Incorporation)
1-11071
(Commission
File Number)
23-2668356
(IRS Employer
Identification No.)
500 North Gulph Road, King of Prussia, PA 19406
(Address of Principal Executive Offices) (Zip Code)
Registrant’s Telephone Number, Including Area Code: 610 337-1000
Not Applicable
Former Name or Former Address, if Changed Since Last Report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, without par value
UGI
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On June 30, 2026, UGI Energy Services, LLC (“UGI Energy Services”), a wholly owned subsidiary of UGI Corporation (the “Company”), entered into that certain Fourth Amendment to Credit Agreement (the “Amendment”), by and among UGI Energy Services, the guarantors party thereto, HSBC Bank USA, N.A., as administrative agent, and HSBC Bank USA, N.A. as the 2026 Refinancing Term Lender (as defined in the Amendment) and the lenders party thereto, which amended UGI Energy Services’ Credit Agreement, dated as of August 13, 2019 (as amended, the “Term Loan Credit Agreement”).
The Amendment provides, among other items, that the Applicable Rate (as defined in the Term Loan Credit Agreement) shall be 2.00% per annum for SOFR Loans (as defined in the Term Loan Credit Agreement) and 1.00% per annum for base rate loans.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth above in Item 1.01 regarding the Amendment is hereby incorporated into this Item 2.03 by reference, insofar as it relates to the creation of a direct financial obligation. This description is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number:
Description
10.1
Fourth Amendment to Credit Agreement, dated June 30, 2026, by and among UGI Energy Services, LLC, the guarantors party thereto, the lenders party thereto, HSBC Bank USA, N.A., as administrative agent, and HSBC Bank USA, N.A. as the 2026 Refinancing Term Lender.
104
Cover Page Interactive Data File (formatted as inline XBRL).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
UGI Corporation
July 7, 2026
By:
/s/ Jessica A. Milner
Name:
Jessica A. Milner
Title:
Secretary
EX-10.1
EX-10.1
Filename: ugi-20260630xex10d1.htm · Sequence: 2
Execution Version
#101109460v8
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated
as of June 30, 2026, is made by and among UGI Energy Services, LLC, a Pennsylvania limited liability
company (the “Borrower”), the other Loan Parties party hereto, HSBC Bank USA, N.A. (as successor to
Credit Suisse AG, Cayman Islands Branch), as Administrative Agent under the Existing Credit Agreement
(as defined below) (in such capacity, the “Administrative Agent”) and HSBC Bank USA, N.A. as the 2026
Refinancing Term Lender (as defined below).
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders party thereto from time to time and the Administrative
Agent are party to that certain Credit Agreement dated as of August 13, 2019 (as amended by that certain
First Amendment to Credit Agreement, dated February 23, 2023, as amended by that certain Second
Amendment to Credit Agreement, dated June 28, 2024, as amended by that certain Third Amendment to
Credit Agreement, dated November 20, 2024, and as further amended, restated, amended and restated,
supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”).
Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the
Amended Credit Agreement (as defined below).
(2) The Borrower has requested that the Lender listed on Schedule I hereto (in such
capacity, the “2026 Refinancing Term Lender”) provide “Refinancing Loans” (as defined in the Existing
Credit Agreement) pursuant to Section 2.21 of the Existing Credit Agreement, in an aggregate principal
amount of $774,000,000.00 (the “2026 Refinancing Term Loans”) to refinance all Term Loans outstanding
immediately prior to the effectiveness of this Amendment (such Term Loans, collectively, the “Refinanced
Term Loans”). For the avoidance of doubt, certain Lenders who hold Refinanced Term Loans may agree
to convert, exchange or “cashless roll” all of their Refinanced Term Loans to or for 2026 Refinancing Term
Loans, and the aggregate 2026 Refinancing Term Commitment (as defined below) shall equal to the amount
of Refinanced Term Loans, less such Refinanced Term Loans that are “cashlessly rolled”.
(3) On the Fourth Amendment Effective Date (as defined below), each person that
executes and delivers this Amendment as a 2026 Refinancing Term Lender will make 2026 Refinancing
Term Loans to the Borrower in an aggregate principal amount equal to the commitment amount set forth
next to its name in Schedule I hereto under the caption “2026 Refinancing Term Commitment” (the “2026
Refinancing Term Commitment”) on the terms set forth in this Amendment.
(4) With respect to this Amendment, HSBC SECURITIES (USA) INC. will act as the
lead arranger and bookrunner (in such capacity, the “Lead Arranger”).
(5) Each Lender holding Refinanced Term Loans that executes and delivers a consent
in the form of the Lender New Commitment attached to the Election Notice Memorandum (as defined in
the Cashless Roll Letter (as defined below)) (a “Lender Consent”) will be deemed (i) to have agreed to the
terms of this Amendment and the Amended Credit Agreement, (ii) to have agreed to exchange (as further
described in the Lender Consent) the Allocated Amount (as defined in the Cashless Settlement of Existing
Loans letter dated as of June 22, 2026 (the “Cashless Roll Letter”), by and among the Borrower, the 2026
Refinancing Term Lender and the Administrative Agent) of its Refinanced Term Loans for 2026
Refinancing Term Loans in an equal principal amount, (iii) to have waived the rights to any breakage costs
that would have otherwise been payable by the Borrower under Section 2.16 of the Existing Credit
Agreement as a result of the refinancing of the Term Loans as contemplated hereby and (iv) upon the Fourth
Exhibit 10.1
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Amendment Effective Date, to have exchanged (as further described in the Lender Consent) the Allocated
Amount of its Refinanced Term Loans for 2026 Refinancing Term Loans in an equal principal amount,
which will be effectuated either by exercising a cashless exchange option or through a cash settlement
option selected by such Existing Lender in its Lender Consent.
(6) The Administrative Agent, the Borrower, the other Loan Parties party hereto and
the 2026 Refinancing Term Lender desire to memorialize the terms of this Amendment and to make certain
other changes set forth herein and in the Amended Credit Agreement by amending, in accordance with
Sections 2.21 and 9.02 of the Existing Credit Agreement, the Existing Credit Agreement as set forth below,
such amendment to become effective at the Amendment Effective Time (as defined below).
NOW, THEREFORE, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and
subject to the conditions set forth herein, the parties hereto hereby agree as follows:
SECTION 1. 2026 Refinancing Term Loans; Amendment.
(a) This Amendment is a Refinancing Amendment referred to in Section 2.21 of the
Existing Credit Agreement.
(b) Subject to and upon the terms and applicable conditions set forth herein, the 2026
Refinancing Term Lender agrees to make, on the Fourth Amendment Effective Date, the 2026 Refinancing
Term Loans in an aggregate principal amount equal to its 2026 Refinancing Term Commitment (which for
the avoidance of doubt, such aggregate amount shall equal to the amount of Refinanced Term Loans, less
the Refinanced Term Loans that are “cashlessly rolled”) of the 2026 Refinancing Term Lender. The 2026
Refinancing Term Commitments will each terminate in full upon the making of the related 2026
Refinancing Term Loans.
(c) Substantially simultaneously with the borrowing of the 2026 Refinancing Term
Loans, the Borrower shall fully prepay any outstanding Refinanced Term Loans, together with accrued and
unpaid interest thereon to the Fourth Amendment Effective Date, including for the avoidance of doubt, all
accrued and unpaid interest on any Refinanced Term Loans that are “cashlessly rolled” pursuant to the
Cashless Roll Letter.
(d) Subject to the satisfaction of the conditions to the effectiveness set forth hereunder, the
funding of the 2026 Refinancing Term Loans will occur in one drawing on the date hereof pursuant to the
Borrower’s request. In the event that all or any portion of the 2026 Refinancing Term Loans are not
borrowed on or before the date hereof, the unborrowed portion of the 2026 Refinancing Term Commitments
shall automatically terminate on the date hereof unless the 2026 Refinancing Term Lender shall, as
applicable, in its sole discretion, agree to an extension.
(e) For the avoidance of doubt, the 2026 Refinancing Term Loans shall constitute a single
“Class”. Pursuant to Section 2.21 of the Existing Credit Agreement, the 2026 Refinancing Term Loans shall
be Initial Term Loans for all purposes under the Amended Credit Agreement and each other Loan Document
and shall have terms identical to the Initial Term Loans outstanding under the Existing Credit Agreement
immediately prior to the date hereof (after giving effect to the amendments set forth herein).
(f) Immediately after the funding of the 2026 Refinancing Term Loans on the Fourth
Amendment Effective Date (such time, the “Amendment Effective Time”), the Existing Credit Agreement
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shall be amended to delete the stricken text (indicated textually in the same manner as the following
example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the
following example: double-underlined text) as set forth on Exhibit A hereto (the Existing Credit Agreement,
as so amended, the “Amended Credit Agreement”), and the Lenders party hereto and the Lenders party to
the Cashless Roll Letter each consent to the Amended Credit Agreement and direct the Administrative
Agent to enter into such other Loan Documents and to take such other actions as the Administrative Agent
determines may be necessary or desirable to give effect to the transactions contemplated hereby.
SECTION 2. Representations and Warranties. Each Loan Party represents and
warrants that as of the Fourth Amendment Effective Date:
(a) This Amendment is within such Loan Party’s organizational powers and has been duly
authorized by all necessary organizational actions and, if required, actions by equity holders of such Loan
Party. This Amendment has been duly executed and delivered by such Loan Party and constitutes a legal,
valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to (x)
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a proceeding in
equity or at law and (y) the need for filings and registrations necessary to perfect the Liens on the Collateral,
if any, granted by the Loan Parties in favor of the Secured Parties.
(b) the execution, delivery or performance by any Loan Party of this Amendment and
compliance by it with the terms and provisions hereof, (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, except (i) filings and
registrations necessary to perfect the Liens on the Collateral, if any, granted by the Loan Parties in favor of
the Administrative Agent for the benefit of the Secured Parties and (ii) such as have been obtained or made
and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by-laws
or other organizational documents of the Borrower or any of its Restricted Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, material agreement
or other material instrument binding upon the Borrower or any of its Restricted Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Restricted
Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower
or any of its Restricted Subsidiaries other than Liens securing the Obligations and the “Obligations” under
(and as defined in) the Revolving Credit Agreement.
(c) the representations and warranties made by any Loan Party set forth in Article III of
the Existing Credit Agreement or in any other Loan Document are true and correct in all material respects
on and as of the Fourth Amendment Effective Date with the same effect as though made on and as of such
date, except to the extent that such representation or warranty expressly relates to an earlier date in which
case such representations and warranties are true and correct in all material respects as of such earlier date;
provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse
Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all
respects on such respective dates;
(d) no Default or Event of Default has occurred and is continuing or would result after
giving effect to this Amendment, the borrowing of the 2026 Refinancing Term Loans or from the
application of the proceeds thereof;
(e) as of the Fourth Amendment Effective Date, the information included in the Beneficial
Ownership Certification is true and correct in all material respects; and
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(f) the Borrower shall have paid to the Administrative Agent the amortization payment
with respect to the Refinanced Term Loans due June 30, 2026.
SECTION 3. Conditions to Effectiveness on the Refinancing Effective Date. This
Amendment, and the obligations of the 2026 Refinancing Term Lender to make the 2026 Refinancing Term
Loans, shall become effective on and as of the Business Day (such date, the “Fourth Amendment Effective
Date”) on which the following conditions shall have been satisfied:
(a) the Administrative Agent (or its counsel) shall have received counterparts of this
Amendment, duly executed and delivered by (i) the Administrative Agent, (ii) the 2026 Refinancing Term
Lender and (iii) the Borrower and each Guarantor;
(b) the Administrative Agent shall have received Borrowing Requests with respect to the
2026 Refinancing Term Loans at least three (3) Business Days prior to the Fourth Amendment Effective
Date, each setting forth the information required by Section 2.03 of the Existing Credit Agreement;
(c) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent
and the 2026 Refinancing Term Lender, a customary opinion of Morgan Lewis & Bockius LLP
Pennsylvania counsel to the Borrower, each dated as of the Fourth Amendment Effective Date, addressed
to the Administrative Agent, Collateral Agent and Lenders in form and substance reasonably acceptable to
the Administrative Agent;
(d) each of the representations and warranties set forth in Section 2 of this Amendment
and Article III of the Amended Credit Agreement and in each other Loan Document shall be true and correct
in all material respects on and as of the Fourth Amendment Effective Date with the same effect as though
made on and as of such date, except to the extent that such representation or warranty expressly relates to
an earlier date in which case such representations and warranties are true and correct in all material respects
as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,”
“Material Adverse Effect” or similar language shall be true and correct (after giving effect to any
qualification therein) in all respects on such respective dates;
(e) no Default or Event of Default then exists and is continuing under the Existing Credit
Agreement immediately before and immediately after giving effect to this Amendment, the borrowing of
the 2026 Refinancing Term Loans, the application of proceeds thereof, and the consummation of the
transactions contemplated thereby;
(f) the Administrative Agent shall have received: (i) resolutions and other evidence of
authority authorizing this Amendment and the other Loan Documents and the other transactions
contemplated hereby, (ii) a good standing certificate or the equivalent, if any, in the jurisdiction of
organization of each Loan Party and (iii) a certificate of the Secretary, Assistant Secretary or other
authorized officer of each Loan Party certifying the names and true signatures of the officers of such Loan
Party authorized to sign the Loan Documents to which it is a party and attaching such Person’s certificate
of incorporation and bylaws or other equivalent organizational documents.
(g) the Borrower has delivered to the Administrative Agent an officer’s certificate, in form
and substance reasonably acceptable to Administrative Agent, certifying that the conditions under Sections
3(d) and (e) of this Amendment and Section 2.21 of the Existing Credit Agreement have been satisfied;
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(h) the 2026 Refinancing Term Lender, the Lead Arranger and the Administrative Agent
shall have received all fees and other amounts due and payable to them on or prior to the Fourth
Amendment Effective Date, including, to the extent invoiced, reimbursement for all reasonable out-of-pocket costs and expenses, including the reasonable fees and disbursements of counsel, incurred by the
Lead Arranger and the Administrative Agent in connection with this Amendment, for which invoices have
been received at least two (2) Business Days in advance;
(i) the Administrative Agent shall have received a solvency certificate in substantially the
form attached as Exhibit G to the Existing Credit Agreement, dated as of the Fourth Amendment Effective
Date and signed by the chief financial officer (or other officer with reasonably equivalent duties) of
Borrower;
(j) the Administrative Agent shall have received a notice of prepayment with respect to
the Refinanced Term Loans at least three (3) Business Days prior to the Fourth Amendment Effective
Date;
(k) the Borrower shall have paid to the Administrative Agent, for the ratable account of
each Lender holding Refinanced Term Loans immediately prior to the Fourth Amendment Effective Date,
simultaneously with the making of the 2026 Refinancing Term Loans, all accrued and unpaid interest and,
to the extent required to be paid by the Loan Parties under the Loan Documents, fees and other amounts
accrued and unpaid on the Refinanced Term Loans to, but not including, the Fourth Amendment Effective
Date, and substantially simultaneously with the borrowing of the 2026 Refinancing Term Loans, the
Refinanced Term Loans shall be paid in full; and
(l) at least three (3) days prior to the Fourth Amendment Effective Date, (i) all
documentation and other information regarding the Borrower requested in connection with applicable
“know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the
extent requested in writing of the Borrower at least ten (10) days prior to the Refinancing Effective Date
and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation, at least five days prior to the Refinancing Effective Date, any Lender that has requested, in a
written notice to the Borrower at least ten (10) days prior to the Effective Date, a Beneficial Ownership
Certification in relation to the Borrower shall have received such Beneficial Ownership Certification.
(m) the Administrative Agent shall have received (i) a completed “life of the loan” Federal
Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged
Property on which any “building” (as defined in the Flood Insurance Laws) is located, and if such property
is in a special flood hazard area, duly executed and acknowledged by the appropriate Loan Party, together
with evidence of flood insurance as and to the extent required under Section 5.05 of the Amended Credit
Agreement.
SECTION 4. Treatment of Amortization Payment Due. Immediately after giving
effect to the making of the 2026 Refinancing Term Loans on the Fourth Amendment Effective Date, upon
the Administrative Agent’s receipt of the Borrower’s amortization payment due June 30, 2026 pursuant to
Section 2.10(a) of the Existing Credit Agreement, such amortization payment shall be applied to repay the
2026 Refinancing Term Loans (and not, for the avoidance of doubt, applied to repay the Refinanced Term
Loans).
SECTION 5. Reaffirmation. Each of the Loan Parties as debtor, grantor, mortgagor,
pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens
6
#101109460v8
or security interests in its property or otherwise acts as accommodation party, guarantor or indemnitor, as
the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent
or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii)
to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any
such Loan Document as security for or otherwise guaranteed the Obligations under or with respect to the
Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and
confirms and agrees that such guarantee includes, and such security interests and liens hereafter secure, all
of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Amendment and
acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and
reaffirmed. The execution of this Amendment shall not operate as a waiver of any right, power or remedy
of the Lead Arranger, Administrative Agent, Collateral Agent or Lenders, constitute a waiver of any
provision of any of the Loan Documents or serve to effect a novation of the Obligations.
SECTION 6. Reference to and Effect on the Loan Documents. On and after the
Amendment Effective Time, each reference in the Amended Credit Agreement to “hereunder”, “hereof”,
“Agreement”, “this Agreement” or words of like import and each reference in the other Loan Documents to
“Credit Agreement”, “thereunder”, “thereof” or words of like import shall, unless the context otherwise
requires, mean and be a reference to the Amended Credit Agreement. From and after the Fourth Amendment
Effective Date, this Amendment shall be a Loan Document under the Existing Credit Agreement and the
Amended Credit Agreement.
(a) The Security Documents and each other Loan Document, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified
and confirmed, and the respective guarantees, pledges, grants of security interests and other agreements, as
applicable, under each of the Security Documents, notwithstanding the consummation of the transactions
contemplated hereby, shall continue to be in full force and effect and shall accrue to the benefit of the
Secured Parties under the Existing Credit Agreement and the Amended Credit Agreement. Without limiting
the generality of the foregoing, the Security Documents and all of the Collateral described therein do and
shall continue to secure the payment of all Obligations (which, for the avoidance of doubt, include the
Obligations in respect of the 2026 Refinancing Term Loans incurred under this Amendment) of the Loan
Parties under the Loan Documents, in each case, as amended by this Amendment.
(b) The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
(c) This Amendment shall constitute a “Refinancing Amendment”, the 2026 Refinancing
Term Lender shall constitute a “Refinancing Lender”, the 2026 Refinancing Term Lender shall constitute
an “Initial Term Lender” and a “Lender”, the 2026 Refinancing Term Loans shall constitute “Refinancing
Loans”, and the 2026 Refinancing Term Loans shall constitute “Term Loans”, “Initial Term Loans” and
“Loans”, in each case, for all purposes of the Amended Credit Agreement and the other Loan Documents.
SECTION 7. Execution in Counterparts. This Amendment may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. Any signature to this
Amendment may be delivered by facsimile, electronic mail (including pdf) or any electronic signature
complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records
Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and
7
#101109460v8
validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable
law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this
Amendment.
SECTION 8. Amendments; Headings; Severability. This Amendment may not be
amended nor may any provision hereof be waived except pursuant to a writing signed by the Borrower, the
Administrative Agent and the Lenders party hereto. The Section headings used herein are for convenience
of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken
into consideration in interpreting this Amendment. Any provision of this Amendment held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the
remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9. Governing Law. This Amendment shall be construed in accordance
with and governed by the law of the State of New York, without regard to conflicts of law principles that
would require the application of the laws of another jurisdiction.
SECTION 10. WAIVER OF JURY TRIAL. Section 9.10 of the Existing Credit
Agreement is hereby incorporated mutatis mutandis.
SECTION 11. No Novation. This Amendment shall not extinguish the obligations for
the payment of money outstanding under the Existing Credit Agreement or discharge or release the Lien or
priority of any Security Document or any other security therefor. Nothing herein contained shall be
construed as a substitution or novation of the obligations outstanding under the Existing Credit Agreement
or instruments securing the same, which shall remain in full force and effect, except to any extent modified
hereby or by instruments executed concurrently herewith and except to the extent repaid as provided herein.
Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a
release or other discharge of any of the Loan Parties under any Loan Document from any of its obligations
and liabilities as a borrower, guarantor or pledgor under any of the Loan Documents.
SECTION 12. Notices. All notices hereunder shall be given in accordance with the
provisions of Section 9.01 of the Amended Credit Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[Signature Page to Fourth Amendment to Credit Agreement]
#101109460v7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first above written.
UGI ENERGY SERVICES, LLC
By: ______________________________________
Name: Joseph L. Hartz
Title: President
GHI ENERGY, LLC
HOMESTEAD HOLDING COMPANY
PENNANT MIDSTREAM, LLC
UGI AG-GRID, LLC
UGI APPALACHIA, LLC
UGI AUBURN GATHERING, LLC
UGI BETHLEHEM LNG, LLC
UGI BIOFUELS, LLC
UGI CARLISLE LNG, LLC
UGI DAKOTA, LLC
UGI GATHERING, LLC
UGI GIBRALTAR GATHERING, LLC
UGI HAMILTON, LLC
UGI LNG, INC.
UGI MANNING LNG, LLC
UGI MARCELLUS, LLC
UGI MORAINE EAST GATHERING, LLC
UGI MT. BETHEL PIPELINE COMPANY, LLC
UGI NEO, LLC
UGI PEAKING, LLC
UGI PINE RUN, LLC
UGI PONDEROSA, LLC
UGI PROPANE AIR, LLC
UGI STEELTON LNG, LLC
UGI STORAGE COMPANY
UGI SUNBURY, LLC
UGI TRANSMISSION, LLC
UGID SOLAR, LLC
By:
Name: Joseph L. Hartz
Title: President
Docusign Envelope ID: 8070F36A-513B-8FFE-8088-27885D2DF897
[Signature Page to Fourth Amendment to Credit Agreement]
#101109460v7
UGI PENNEAST, LLC
By: UGI Transmission, LLC, its sole member
By:
Name: Joseph L. Hartz
Title: President
PENNANT FIELD GATHERING, LLC
PENNANT NGL, LLC
PENNANT PROCESSING, LLC
PENNANT RESIDUE GATHERING, LLC
PENNANT TRUNKLINE GATHERING, LLC
By: Pennant Midstream, LLC, its sole member
By:
Name: Joseph L. Hartz
Title: President
UGI BROAD MOUNTAIN RNG, LLC
By: UGI Biofuels, LLC, its sole member
By:
Name: Joseph L. Hartz
Title: President
Docusign Envelope ID: 8070F36A-513B-8FFE-8088-27885D2DF897
Anita Ram
Vice President
[Signature Page to Fourth Amendment to Credit Agreement]
HSBC BANK USA, N.A., as 2026 Refinancing Term
Lender
By: ______________________________
Name: Ashish Maskara
Title: Managing Director
By: ______________________________
Name: Ashish Maskara
Title: Managing Director
#101109460v8
SCHEDULE I
2026 Refinancing Term Commitments
2026 Refinancing Term Lender 2026 Refinancing Term Commitment
HSBC Bank USA, N.A. $ 27,453,140.35
Total: $ 27,453,140.35
#101109460v8
EXHIBIT A
Amended Credit Agreement
[See attached.]
#101109459v1101109459v9
Exhibit A
To ThirdFourth Amendment to Credit Agreement
CREDIT AGREEMENT
dated as of
August 13, 2019
(as amended by that certain First Amendment to Credit Agreement, dated February 23, 2023,
as further amended by that certain Second Amendment to Credit Agreement, dated June 28, 2024,
as further amended by that certain Third Amendment to Credit Agreement, dated November 20, 2024),
as further amended by that certain Fourth Amendment to Credit Agreement, dated June 30, 2026)
Among
UGI ENERGY SERVICES, LLC
The Lenders Party Hereto
HSBC BANK USA, N.A.
(as successor to Credit Suisse AG, Cayman Islands Branch)
as Administrative Agent and Collateral Agent
HSBC SECURITIES (USA) INC.,
BOFA SECURITIES, INC.,
CITIZENS BANK, N.A.,
JPMORGAN CHASE BANK, N.A.,
MUFG BANK, LTD.,
PNC CAPITAL MARKETS LLC,
REGIONS CAPITAL MARKETS, a division of Regions Bank
and
WELLS FARGO SECURITIES, LLC,
as Joint Bookrunners and Joint Lead Arrangers
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings 38
SECTION 1.03. Terms Generally 3839
SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations 39
SECTION 1.05. Status of Obligations 40
SECTION 1.06. Interest Rates 40
ARTICLE II THE CREDITS 4041
SECTION 2.01. Commitments 4041
SECTION 2.02. Loans and Borrowings 41
SECTION 2.03. Requests for Borrowings 41
SECTION 2.04. Intentionally Omitted 42
SECTION 2.05. Intentionally Omitted 42
SECTION 2.06. Intentionally Omitted 42
SECTION 2.07. Funding of Borrowings 42
SECTION 2.08. Interest Elections 42
SECTION 2.09. Termination of Commitments 4344
SECTION 2.10. Repayment and Amortization of Loans; Evidence of Debt 4344
SECTION 2.11. Prepayment of Loans 44
SECTION 2.12. Fees 4647
SECTION 2.13. Interest 47
SECTION 2.14. Alternate Rate of Interest 4748
SECTION 2.15. Increased Costs 48
SECTION 2.16. Break Funding Payments 49
SECTION 2.17. Taxes 50
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs 5354
SECTION 2.19. Mitigation Obligations; Replacement of Lenders 55
SECTION 2.20. Incremental Term Loans 5556
SECTION 2.21. Refinancing Facilities. 5657
SECTION 2.22. Defaulting Lenders 5758
SECTION 2.23. Benchmark Replacement Setting. 58
ARTICLE III REPRESENTATIONS AND WARRANTIES 5960
SECTION 3.01. Organization; Powers; Subsidiaries 5960
SECTION 3.02. Authorization; Enforceability 60
SECTION 3.03. Governmental Approvals; No Conflicts 60
SECTION 3.04. Financial Condition; No Material Adverse Change 6061
SECTION 3.05. Properties 6061
SECTION 3.06. Litigation, Environmental and Labor Matters 61
SECTION 3.07. Compliance with Laws and Agreements 6162
SECTION 3.08. Investment Company Status 6162
SECTION 3.09. Taxes 6162
SECTION 3.10. ERISA 62
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#101109459v1101109459v9
TABLE OF CONTENTS
(Continued)
Page
SECTION 3.11. Disclosure 62
SECTION 3.12. Federal Reserve Regulations 62
SECTION 3.13. Liens 62
SECTION 3.14. No Default 6263
SECTION 3.15. No Burdensome Restrictions 6263
SECTION 3.16. Solvency 6263
SECTION 3.17. Anti-Corruption Laws and Sanctions 63
SECTION 3.18. EEA Financial Institutions 63
SECTION 3.19. Plan Assets; Prohibited Transactions 63
SECTION 3.20. Collateral Documents 63
SECTION 3.21. Material Property 6364
SECTION 3.22. Patriot Act 6364
SECTION 3.23. Beneficial Ownership Certification 6364
SECTION 3.24. Designation as Senior Debt 6364
ARTICLE IV CONDITIONS 64
SECTION 4.01. Effective Date 64
ARTICLE V AFFIRMATIVE COVENANTS 66
SECTION 5.01. Financial Statements and Other Information 66
SECTION 5.02. Notices of Material Events 68
SECTION 5.03. Existence; Conduct of Business 68
SECTION 5.04. Payment of Obligations 6869
SECTION 5.05. Maintenance of Properties; Insurance 6869
SECTION 5.06. Books and Records; Inspection Rights 6970
SECTION 5.07. Compliance with Laws and Material Contractual Obligations 6970
SECTION 5.08. Use of Proceeds 70
SECTION 5.09. Subsidiary Guaranty 70
SECTION 5.10. Maintenance of Ratings 7273
SECTION 5.11. Post-Closing Conditions. 73
SECTION 5.12. Further Assurances 73
ARTICLE VI NEGATIVE COVENANTS 7374
SECTION 6.01. Indebtedness 7374
SECTION 6.02. Liens 7475
SECTION 6.03. Fundamental Changes and Asset Sales 76
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions 77
SECTION 6.05. Swap Agreements 79
SECTION 6.06. Transactions with Affiliates 79
SECTION 6.07. Restricted Payments 7980
SECTION 6.08. Restrictive Agreements 80
SECTION 6.09. Junior Indebtedness and Agreements 8081
SECTION 6.10. Sale and Leaseback Transactions 81
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#101109459v1101109459v9
TABLE OF CONTENTS
(Continued)
Page
SECTION 6.11. Financial Covenant 8182
ARTICLE VII EVENTS OF DEFAULT 8182
SECTION 7.01. Events of Default 8182
ARTICLE VIII THE ADMINISTRATIVE AGENT 84
SECTION 8.01. Authorization and Action 84
SECTION 8.02. Administrative Agent’s Reliance, Indemnification, Etc. 8687
SECTION 8.03. Posting of Communications 8788
SECTION 8.04. The Administrative Agent Individually 8889
SECTION 8.05. Successor Administrative Agent 8889
SECTION 8.06. Acknowledgments of Lenders 8990
SECTION 8.07. Collateral Matters 90
SECTION 8.08. Credit Bidding 9091
SECTION 8.09. Certain ERISA Matters 9192
SECTION 8.10. Erroneous Payments. 92
ARTICLE IX MISCELLANEOUS 94
SECTION 9.01. Notices 94
SECTION 9.02. Waivers; Amendments 95
SECTION 9.03. Expenses; Indemnity; Damage Waiver 9697
SECTION 9.04. Successors and Assigns 98
SECTION 9.05. Survival 101102
SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution 102
SECTION 9.07. Severability 102103
SECTION 9.08. Right of Setoff 102103
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process 103
SECTION 9.10. WAIVER OF JURY TRIAL 103104
SECTION 9.11. Headings 104
SECTION 9.12. Confidentiality 104
SECTION 9.13. Material Non-Public Information 105
SECTION 9.14. USA PATRIOT Act 105106
SECTION 9.15. Releases of Subsidiary Guarantors and Collateral 105106
SECTION 9.16. Interest Rate Limitation 106107
SECTION 9.17. No Advisory or Fiduciary Responsibility 107
SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial
Institutions 107108
SECTION 9.19. Acknowledgement Regarding Any Support QFCs 108109
SECTION 9.20. Intercreditor Agreements 109110
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#101109459v1101109459v9
TABLE OF CONTENTS
(Continued)
SCHEDULES:
Schedule 2.01 – Commitments
Schedule 3.01 – Subsidiaries
Schedule 5.09 – Certain Mortgaged Properties
Schedule 6.01 – Existing Indebtedness
Schedule 6.02 – Existing Liens
Schedule 6.04 – Existing Investments
Schedule 6.06 – Existing Affiliate Transactions
EXHIBITS:
Exhibit A – Form of Assignment and Assumption
Exhibit B – Subordination Terms
Exhibit C-1 – Form of U.S. Tax Compliance Certificate (Foreign Lenders That Are Not Partnerships)
Exhibit C-2 – Form of U.S. Tax Compliance Certificate (Foreign Participants That Are Not
Partnerships)
Exhibit C-3 – Form of U.S. Tax Compliance Certificate (Foreign Participants That Are Partnerships)
Exhibit C-4 – Form of U.S. Tax Compliance Certificate (Foreign Lenders That Are Partnerships)
Exhibit D – Form of Borrowing Request
Exhibit E – Form of Interest Election Request
Exhibit F – [Reserved]
Exhibit G – Form of Solvency Certificate
Exhibit H – Form of First Lien/First Lien Intercreditor Agreement
Exhibit I – Form of First Lien/Second Lien Intercreditor Agreement
Exhibit J – Form of Subsidiary Guaranty
Exhibit K – Form of Security Agreement
Exhibit L – Form of Perfection Certificate
Exhibit M – Form of Perfection Certificate Supplement
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#101109459v1101109459v9
CREDIT AGREEMENT (this “Agreement”) dated as of August 13, 2019, among UGI
ENERGY SERVICES, LLC, the Lenders from time to time party hereto, and HSBC BANK USA, N.A.,
as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
“Acquisition Period” means any period, to the extent elected by the Borrower with prior
written notice to the Administrative Agent, commencing on the date that any acquisition (whether by
direct purchase, merger or otherwise and whether in a single transaction or series of related transactions)
of property in which the value of the assets acquired is greater than or equal to $250,000,000 is
consummated through and including the last day of the second full fiscal quarter following the date on
which such acquisition is consummated; provided that (i) no Acquisition Period shall commence at any
time a Default or Event of Default shall have occurred and be continuing, and (ii) there shall be at least
two full fiscal quarters between any two Acquisition Periods; provided further that for up to three times
during the term of this Agreement, only one full fiscal quarter between any two Acquisition Periods shall
be required.
“A/R Purchase Programs” has the meaning assigned to such term in the definition of the
term “Permitted Encumbrances”.
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Alternate
Base Rate.
“ABR Term SOFR Determination Day” has the meaning specified in the definition of
“Term SOFR”.
“Acknowledgment of Grantors” has the meaning assigned to such term in the
Intercreditor Agreements.
“Administrative Agent” means HSBC Bank USA, N.A. (including its branches and
affiliates), in its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK
Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
#101109459v1101109459v9
“Agreement” has the meaning assigned to such term in the opening paragraph hereof.
“All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of
interest rate, margin, original issue discount, upfront fees, a Term SOFR or Alternate Base Rate floor, or
otherwise, in each case, incurred or payable by the Borrower generally to all lenders of such
Indebtedness; provided that original issue discount and upfront fees shall be equated to interest rate
assuming a 4-year life to maturity (e.g. 100 basis points of original issue discount equals 25 basis points
of interest rate margin for a four year average life to maturity); and provided, further, that “All-In Yield”
shall not include amendment fees, consent fees, arrangement fees, structuring fees, commitment fees,
underwriting fees, placement fees, advisory fees, success fees, ticking fees, undrawn commitment fees
and similar fees (regardless of whether any of the foregoing fees are paid to, or shared with, in whole or
in part, any or all lenders), any fees not paid or payable in the primary syndication of such Indebtedness
or fees not paid or payable generally to all lenders thereof ratably.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1% and (c) Term SOFR for a one month tenor in effect on such day (or if such day is not a Business
Day, the immediately preceding Business Day) plus 1.00%. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain
the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate
Base Rate shall be determined without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. If the Alternate Base Rate is being used as an
alternate rate of interest pursuant to Section 2.14(a) hereof, then the Alternate Base Rate shall be the
greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. Any
change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or
Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the Term SOFR, as the case may be. For the avoidance of doubt, if the
Alternate Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be
deemed to be 1.00% for purposes of this Agreement.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction
applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery
or corruption.
“Applicable ECF Percentage” means, as of the last day of an Excess Cash Flow Period,
(a) if the Consolidated Total Leverage Ratio is greater than 4.00:1.00, 75%, (b) if the Consolidated Total
Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.00:1.00, 50%, and (c) if the
Consolidated Total Leverage Ratio is less than or equal to 3.00:1.00, 0%.
“Applicable Percentage” means, with respect to any Lender, (a) with respect to the Initial
Term Loans, a percentage equal to a fraction the numerator of which is such Lender’s Initial Term
Commitment and the denominator of which is the aggregate of all Initial Term Commitments of all Initial
Term Lenders (and, after the Initial Term Loans shall be made hereunder, a percentage equal to a fraction
the numerator of which is such Lender’s outstanding principal amount of the Initial Term Loans and the
denominator of which is the aggregate outstanding principal amount of the Initial Term Loans of all
Initial Term Lenders), provided that, in the case of Section 2.22 when a Defaulting Lender shall exist,
any such Defaulting Lender’s Initial Term Commitment shall be disregarded in the calculation, and (b)
with respect to the Incremental Term Loans, a percentage equal to a fraction the numerator of which is
such Lender’s Incremental Term Commitment and the denominator of which is the aggregate of all
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#101109459v1101109459v9
Incremental Term Commitments of all Incremental Term Lenders (and, after the Incremental Term Loans
shall be made hereunder, a percentage equal to a fraction the numerator of which is such Lender’s
outstanding principal amount of the Incremental Term Loans and the denominator of which is the
aggregate outstanding principal amount of the Incremental Term Loans of all Incremental Term Lenders),
provided that, in the case of Section 2.22 when a Defaulting Lender shall exist, any such Defaulting
Lender’s Incremental Term Commitment shall be disregarded in the calculation.
“Applicable Rate” means, for any day, (i) with respect to any SOFR Loan, 2.502.00%
per annum and (ii) with respect to any ABR Loan, 1.501.00% per annum.
“Approved Electronic Platform” has the meaning assigned to it in Section 8.03(a).
“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or
(c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and
accepted by the Administrative Agent, in the form of Exhibit A or any other form (including electronic
records generated by the use of an electronic platform) approved by the Administrative Agent.
“Attributable Receivables Indebtedness” means, at any time, the principal amount of
Indebtedness which (i) if a Permitted Receivables Facility is structured as a lending agreement or other
similar agreement, constitutes the principal amount of such Indebtedness or (ii) if a Permitted
Receivables Facility is structured as a purchase agreement or other similar agreement, would be
outstanding at such time under the Permitted Receivables Facility if the same were structured as a
lending agreement rather than a purchase agreement or such other similar agreement (whether such
amount is described as “capital” or otherwise).
“Augmenting Lender” has the meaning assigned to such term in Section 2.20(a).
“Available Tenor” means, as of any date of determination and with respect to the
then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such
Benchmark (or component thereof) that is or may be used for determining the length of an interest period
pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to
such Benchmark (or component thereof) that is or may be used for determining any frequency of making
payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each
case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is
then-removed from the definition of “Interest Period” pursuant to Section 2.23(d).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European
Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to
time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United
Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other
law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing
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#101109459v1101109459v9
banks, investment firms or other financial institutions or their affiliates (other than through liquidation,
administration or other insolvency proceedings).
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding
entered in respect thereof, provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental
Authority or instrumentality thereof, unless such ownership interest results in or provides such Person
with immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority or
instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such
Person.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a
Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the
then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent
that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.23.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the
sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the
Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark
rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any
evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the
then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the
related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so
determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor
for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the
then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method
for calculating or determining such spread adjustment, (which may be a positive or negative value or
zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to
(a) any selection or recommendation of a spread adjustment, or method for calculating or determining
such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted
Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing
market convention for determining a spread adjustment, or method for calculating or determining such
spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest to occur of the following events with
respect to the then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of
(i) the date of the public statement or publication of information referenced therein and (ii)
the date on which the administrator of such Benchmark (or the published component used in
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the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of
such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on
which such Benchmark (or the published component used in the calculation thereof) has
been determined and announced by the regulatory supervisor for the administrator of such
Benchmark (or such component thereof) to be non-representative; provided that such
non-representativeness will be determined by reference to the most recent statement or
publication referenced in such clause (c) and even if any Available Tenor of such Benchmark
(or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have
occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the
applicable event or events set forth therein with respect to all then-current Available Tenors of such
Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following
events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such
Benchmark (or the published component used in the calculation thereof) announcing that
such administrator has ceased or will cease to provide all Available Tenors of such
Benchmark (or such component thereof), permanently or indefinitely; provided that, at the
time of such statement or publication, there is no successor administrator that will continue
to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in the calculation
thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency
official with jurisdiction over the administrator for such Benchmark (or such component), a
resolution authority with jurisdiction over the administrator for such Benchmark (or such
component) or a court or an entity with similar insolvency or resolution authority over the
administrator for such Benchmark (or such component), which states that the administrator
of such Benchmark (or such component) has ceased or will cease to provide all Available
Tenors of such Benchmark (or such component thereof) permanently or indefinitely;
provided that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such Benchmark (or such
component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in the calculation
thereof) announcing that all Available Tenors of such Benchmark (or such component
thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have
occurred with respect to any Benchmark if a public statement or publication of information set forth
above has occurred with respect to each then-current Available Tenor of such Benchmark (or the
published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event,
the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition
Event is a public statement or publication of information of a prospective event, the 90th day prior to the
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#101109459v1101109459v9
expected date of such event as of such public statement or publication of information (or if the expected
date of such prospective event is fewer than 90 days after such statement or publication, the date of such
statement or publication).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time
that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has
replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in
accordance with Section 2.23 and (b) ending at the time that a Benchmark Replacement has replaced the
then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with
Section 2.23.
“Beneficial Ownership Certification” means a certification regarding beneficial
ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that
is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c)
any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title
I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Big Boy Letter” means a letter from a Lender acknowledging that (i) an assignee may
have information regarding the Borrower and any Subsidiary, their ability to perform the Obligations or
any other material information that has not previously been disclosed to the Administrative Agent and the
Lenders (“Excluded Information”), (ii) the Excluded Information may not be available to such Lender,
(iii) such Lender has independently and without reliance on any other party made its own analysis and
determined to assign Loans to such assignee pursuant to Section 9.04 notwithstanding its lack of
knowledge of the Excluded Information and (iv) such Lender waives and releases any claims it may have
against the Administrative Agent, such assignee, the Borrower and the Subsidiaries with respect to the
nondisclosure of the Excluded Information; or otherwise in form and substance reasonably satisfactory to
such assignee, the Administrative Agent and assigning Lender.
“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.
“Borrower” means UGI Energy Services, LLC, a Pennsylvania limited liability company.
“Borrowing” means Loans of the same Type and Class, made, converted or continued on
the same date and, in the case of SOFR Loans, as to which a single Interest Period is in effect.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance
with Section 2.03, which shall be substantially in the form attached hereto as Exhibit D or any other form
approved by the Administrative Agent.
“Burdensome Restrictions” means any consensual encumbrance or restriction of the type
described in clause (a) or (b) of Section 6.08.
“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
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“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP, and
the amount of such obligations shall be the capitalized amount thereof determined in accordance with
GAAP; provided, however, that no power purchase agreement with an independent power producer or a
power producer which is not an Affiliate of the Borrower shall constitute a Capital Lease Obligation.
“Change in Control” means (a) any Person or two or more Persons acting in concert
(other than the Parent or its direct or indirect wholly-owned Subsidiaries) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934),
directly or indirectly, of Equity Interests of the Borrower (or other securities convertible into such Equity
Interests) representing 30% or more of the combined voting power of all Equity Interests of the
Borrower; or (b) during any period of up to 12 consecutive months, commencing after the Effective Date,
a majority of the members of the board of directors of the Borrower cease to be composed of individuals
(x) who were members of that board on the first day of such period, (y) whose election or nomination to
that board was approved by individuals referred to in clause (x) above constituting at the time of such
election or nomination at least a majority of that board or (z) whose election or nomination to that board
was approved by individuals referred to in clauses (x) and (y) above constituting at the time of such
election or nomination at least a majority of that board; or (c) the Borrower shall cease for any reason to
be, directly or indirectly, wholly-owned by the Parent.
“Change in Law” means the occurrence, after the Effective Date (or with respect to any
Lender, if later, the date on which such Lender becomes a Lender), of any of the following: (a) the
adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation
or treaty or in the administration, interpretation, implementation or application thereof by any
Governmental Authority, or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender’s holding company, if any) with any request, rules,
guideline, requirement or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement; provided that, notwithstanding anything
herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines, requirements or directives thereunder, or issued in connection therewith or in
the implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or
any successor or similar authority) or the United States or foreign regulatory authorities, in each case
pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date
enacted, adopted, issued or implemented.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Initial Term Loans or Incremental Term Loans, and, when
used in reference to any Commitment, whether such Commitment is an Initial Term Commitment or an
Incremental Term Commitment, and, when used in reference to any Lender, refers to whether such
Lender has any Initial Term Commitment or Initial Term Loans, or any Incremental Term Commitment
or Incremental Term Loans.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means (i) the “Collateral” as defined in the Security Agreement, (ii) all
“Collateral” or “Mortgaged Property” as defined in any other Collateral Document and (iii) any other
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#101109459v1101109459v9
assets pledged or in which a Lien is granted, in each case, pursuant to any Collateral Document; provided
that at no time shall this definition or any of the foregoing include any Excluded Property.
“Collateral Agent” means HSBC Bank USA, N.A. (including its branches and affiliates),
in its capacity as collateral agent for the Secured Parties under the Collateral Documents.
“Collateral Documents” means, collectively, the Security Agreement, any Security
Agreement Supplements, any Intellectual Property Security Agreements and the Mortgages delivered to
the Collateral Agent on the Effective Date or pursuant to Section 5.09 or 5.11.
“Columbia Acquisition” means the acquisition, indirectly, by the Borrower of all of the
issued and outstanding Equity Interests of Columbia Midstream Group, LLC, a Delaware limited liability
company (“Target”) pursuant to the Columbia Acquisition Agreement, which acquisition will be effected
through the sale by the Columbia Seller of all of the outstanding equity interests of the Target to the
Borrower.
“Columbia Acquisition Agreement” means that certain Purchase and Sale Agreement,
dated as of July 2, 2019, by and among Columbia Midstream & Minerals Group, LLC, a Delaware
limited liability company (“Columbia Seller”), the Borrower, and solely for the purposes set forth
therein, each of the Parent and TransCanada PipeLine USA Ltd., a Nevada corporation, as amended from
time to time in accordance with the terms of this Agreement.
“Columbia Seller” has the meaning assigned to such term in the definition of “Columbia
Acquisition Agreement”.
“Commitment” means an Initial Term Commitment or Incremental Term Commitment.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),
as amended from time to time, and any successor statute.
“Communications” has the meaning assigned to such term in Section 8.03(c).
“Conforming Changes” means, with respect to either the use or administration of Term
SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any
technical, administrative or operational changes (including changes to the definition of “Alternate Base
Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,”
the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of
“interest period”), timing and frequency of determining rates and making payments of interest, timing of
borrowing requests or prepayment, conversion or continuation notices, the applicability and length of
lookback periods, the applicability of Section 2.16 and other technical, administrative or operational
matters) that the Administrative Agent decides may be appropriate to reflect the adoption and
implementation of any such rate or to permit the use and administration thereof by the Administrative
Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides
that adoption of any portion of such market practice is not administratively feasible or if the
Administrative Agent determines that no market practice for the administration of any such rate exists, in
such other manner of administration as the Administrative Agent decides is reasonably necessary in
connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
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“Consolidated Capital Expenditures” means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries prepared in accordance with
GAAP (as modified by Section 1.04).
“Consolidated EBITDA” means Consolidated Net Income plus, (a) to the extent
deducted from revenues in determining Consolidated Net Income, and, without duplication,
(i) Consolidated Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization, (v) net after-tax extraordinary, unusual or non-recurring expenses or losses incurred
other than in the ordinary course of business, (vi) non-cash expenses related to stock based
compensation, (vii) transaction costs and expenses incurred in connection with the consummation of this
Agreement, the Columbia Acquisition, acquisitions, Dispositions, investments, issuances of equity,
issuance, repayment, refinancing, amendment or modification of any Indebtedness, in each case, whether
or not successful, (viii) net after-tax losses attributable to Dispositions, (ix) net after-tax losses
attributable to the early extinguishment of Indebtedness, (x) costs attributable to the undertaking and/or
implementation of any strategic initiatives, business optimization expense (including costs and expenses
relating to business optimization programs, retention charges, an implementation costs), project start-up
costs, severance and other restructuring charges (including restructuring cost related to acquisitions and
to the closure of facilities, and excess pension charges), running costs, relocation costs and expenses,
integration costs, transition costs, pre-opening, opening costs and/or signing, retention and completion
bonuses and (xi) in connection with (A) the Transactions and (B) any restructuring, other business
optimization or similar action of the Borrower and/or any of its Restricted Subsidiaries outside of the
ordinary course of business, including as a result of the incurrence of any business optimization expense,
the amount of “run-rate” cost savings and synergies projected by the Borrower in good faith to result
from actions taken, committed to be taken or expected to be taken within 24 months after the end of such
period (which cost savings and synergies shall be subject only to certification by management of the
Borrower as being factually supportable and reasonably identifiable and calculated on a pro forma basis
as though such cost savings and synergies had been realized on the first day of such period), net of the
amount of actual benefits realized from such actions (it is understood and agreed that “run-rate” means
the full recurring benefit for a period that is associated with any action that is taken, committed to be
taken or expected to be taken; provided that such benefit is expected to be realized within 24 months of
taking such action) minus, (b) to the extent included in Consolidated Net Income, (i) interest income,
(ii) income tax credits and refunds (to the extent not netted from tax expense), (iii) any cash payments
made during such period in respect of items described in clauses (a)(v), (vii), (viii) or (ix) above
subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were incurred, (iv) net
after-tax gains attributable to Dispositions, (v) net after-tax gains attributable to the early extinguishment
of Indebtedness, and (vi) extraordinary, unusual or non-recurring income or gains realized other than in
the ordinary course of business, all calculated for the Borrower and its Restricted Subsidiaries in
accordance with GAAP on a consolidated basis (as modified by Section 1.04). For the purposes of
calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “Reference
Period”), (i) any unrealized gains or losses on commodity derivative instruments and realized gains or
losses on commodity derivative instruments not associated with transactions occurring in the Reference
Period which are included in Consolidated Net Income (other than any realized gains or losses on
commodity derivative instruments which are settled and associated with transactions occurring in such
Reference Period) shall be excluded, (ii) if at any time during such Reference Period the Borrower or any
Restricted Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such
Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the property that is the subject of such Material Disposition for such Reference Period or
increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such
Reference Period, and (iii) if during such Reference Period the Borrower or any Restricted Subsidiary
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shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be
calculated after giving effect thereto on a Pro Forma Basis as if such Material Acquisition occurred on
the first day of such Reference Period. As used in this definition, “Material Acquisition” means any
acquisition of property or series of related acquisitions of property that (a) constitutes (i) assets
comprising all or substantially all or any significant portion of a business or operating unit of a business,
or (ii) all or substantially all of the common stock or other Equity Interests of a Person, and (b) involves
the payment of consideration by the Borrower and its Restricted Subsidiaries in excess of $30,000,000;
and “Material Disposition” means any Disposition of property or series of related Dispositions of
property that yields gross proceeds to the Borrower or any of its Restricted Subsidiaries in excess of
$30,000,000.
“Consolidated Interest Expense” means, with reference to any period, the interest
expense (including without limitation interest expense under Capital Lease Obligations that is treated as
interest in accordance with GAAP (as modified by Section 1.04)) of the Borrower and its Restricted
Subsidiaries calculated on a consolidated basis (as modified by Section 1.04) for such period with respect
to (a) all outstanding Indebtedness of the Borrower and its Restricted Subsidiaries allocable to such
period in accordance with GAAP (as modified by Section 1.04) (including, without limitation, all
commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under interest rate Swap Agreements to the extent such net costs are
allocable to such period in accordance with GAAP) and (b) the interest component of all Attributable
Receivable Indebtedness of the Borrower and its Restricted Subsidiaries. In the event that the Borrower
or any Restricted Subsidiary shall have completed a Material Acquisition or a Material Disposition since
the beginning of the relevant period, Consolidated Interest Expense shall be determined for such period
on a Pro Forma Basis as if such acquisition or Disposition, and any related incurrence or repayment of
Indebtedness, had occurred at the beginning of such period.
“Consolidated Net Income” means, with reference to any period, the net income (or loss)
attributable to the Borrower and its Restricted Subsidiaries calculated in accordance with GAAP on a
consolidated basis (as modified by Section 1.04) (without duplication) for such period; provided that
there shall be excluded any income (or loss) of any Person other than the Borrower or a Restricted
Subsidiary, but any such income so excluded may be included in such period or any later period to the
extent of any cash dividends or distributions actually paid in the relevant period to the Borrower or any
wholly-owned Restricted Subsidiary of the Borrower.
“Consolidated Secured Leverage Ratio” means, as determined as of the end of the most
recently ended fiscal quarter, the ratio of (a) Consolidated Total Indebtedness secured by a Lien on any
assets of the Borrower or any of its Restricted Subsidiaries (less any cash and cash equivalents on hand
of the Borrower and its Restricted Subsidiaries) to (b) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for the Borrower and
its Restricted Subsidiaries on a consolidated basis; provided that the Consolidated Secured Leverage
Ratio shall be calculated assuming clause (a) of this definition includes all Incremental Equivalent Debt
(whether or not such Incremental Equivalent Debt is unsecured or secured on a pari passu basis with or
junior basis to the Initial Term Loans) that (i) has been incurred pursuant to clause (b) of the definition of
“Incremental Cap” and outstanding or (ii) is being incurred pursuant to clause (b) of the definition of
“Incremental Cap” for which such amount is being determined.
“Consolidated Total Assets” means, as of the date of any determination thereof, total
assets of the Borrower and its Restricted Subsidiaries calculated in accordance with GAAP on a
consolidated basis (as modified by Section 1.04) as of such date.
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“Consolidated Total Indebtedness” means at any time the sum, without duplication, of
(a) the aggregate Indebtedness of the Borrower and its Restricted Subsidiaries calculated on a
consolidated basis as of such time in accordance with GAAP (as modified by Section 1.04), (b) the
aggregate amount of Indebtedness of the Borrower and its Restricted Subsidiaries relating to the
maximum drawing amount of all letters of credit outstanding and bankers’ acceptances and
(c) Indebtedness of the type referred to in clauses (a) or (b) hereof of another Person guaranteed by the
Borrower or any of its Restricted Subsidiaries; provided that Consolidated Total Indebtedness shall be
calculated exclusive of contingent Indebtedness attributable to letters of credit, bankers’ acceptances and
surety bonds at such time in an aggregate amount up to $50,000,000. For the avoidance of doubt,
Consolidated Total Indebtedness includes all Attributable Receivables Indebtedness.
“Consolidated Total Leverage Ratio” means, as determined as of the end of the most
recently ended fiscal quarter, the ratio of (a) Consolidated Total Indebtedness (less any cash and cash
equivalents on hand of the Borrower and its Restricted Subsidiaries) to (b) Consolidated EBITDA for the
period of four (4) consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for
the Borrower and its Restricted Subsidiaries on a consolidated basis.
“Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Corresponding Loan Amount” has the meaning assigned to it in Section 8.10(c).
“Credit Exposure” means, as to any Lender at any time, an amount equal to the aggregate
principal amount of its Loans outstanding at such time.
“Cumulative Retained Excess Cash Flow” means, at any time, (a) the aggregate
cumulative sum of the Retained Percentage of the Excess Cash Flow for all Excess Cash Flow Periods
ending after the Effective Date and prior to such date, minus (b) the aggregate amount of Investments
made pursuant to Section 6.04(l), Restricted Payments made pursuant to Section 6.07(g) and payments of
Junior Indebtedness made pursuant to Section 6.09(b)(i)(B), in each case made prior to such time.
“Current Assets” means, at any time, the consolidated current assets (other than cash and
Permitted Investments) of the Borrower and its Restricted Subsidiaries at such time.
“Current Liabilities” means, at any time, (a) the consolidated current liabilities of the
Borrower and its Restricted Subsidiaries at such time, but excluding, without duplication, the current
portion of any long-term Indebtedness and (b) revolving loans, swingline loans and letter of credit
obligations under the Revolving Credit Agreement or any other revolving credit facility.
“Credit Party” means the Administrative Agent or any other Lender.
“Debt Service” means, with respect to the Borrower and its Restricted Subsidiaries on a
consolidated basis for any period, Consolidated Interest Expense for such period plus scheduled principal
amortization of Consolidated Total Indebtedness for such period.
“Debt Service Coverage Ratio” means, as determined as of the end of the most recently
ended fiscal quarter, the ratio of (i) Consolidated EBITDA to (ii) Debt Service for the period of four
(4) consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for the Borrower
and its Restricted Subsidiaries on a consolidated basis.
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“Default” means any event or condition which upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans or (ii) pay over to any Credit
Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such
Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good
faith determination that a condition precedent to funding (specifically identified and including the
particular default, if any) has not been satisfied, (b) has notified the Borrower or any Credit Party in
writing, or has made a public statement to the effect, that it does not intend or expect to comply with any
of its funding obligations under this Agreement (unless such writing or public statement indicates that
such position is based on such Lender’s good faith determination that a condition precedent (specifically
identified and including the particular default, if any) to funding a Loan under this Agreement cannot be
satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within
three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in
writing from an authorized officer of such Lender that it will comply with its obligations (and is
financially able to meet such obligations) to fund prospective Loans, provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such
certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the
subject of (A) a Bankruptcy Event or (B) a Bail-In Action.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition
(in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise)
of any property by any Person (including any sale and leaseback transaction and any issuance of Equity
Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Institution” means each of (a) the specific institutions, if any, identified by
name in a writing by you to us prior to July 2, 2019, (b) the Borrower’s and its Subsidiaries’ competitors
identified by name in writing by the Borrower to the Administrative Agent from time to time and (c) each
of the Affiliates of each Disqualified Institution described in each of clauses (a) and (b) (other than, in
each case, bona fide fixed income investors or debt funds) that are so identified by name in writing by the
Borrower to the Administrative Agent or where such Affiliate’s relationship to such Disqualified
Institution is readily identifiable on the basis of its name; provided that no written notice delivered
pursuant to clause (b) or (c) above may apply retroactively to any Person that has previously acquired an
assignment or participation interest with respect to the Loans (in which case such notice shall be null and
void with respect to such Person).
“Dividing Person” has the meaning assigned to it in the definition of “Division”.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the
“Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar
arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing
Person may or may not survive.
“Division Successor” means any Person that, upon the consummation of a Division of a
Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by
such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which
retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division
Successor upon the occurrence of such Division.
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“Dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America.
“ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the
Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by
the Commodity Futures Trading Commission and/or the SEC.
“EEA Financial Institution” means (a) any institution established in any EEA Member
Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in
an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or
(c) any institution established in an EEA Member Country which is a subsidiary of an institution
described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person
entrusted with public administrative authority of any EEA Member Country (including any delegee)
having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” has the meaning assigned to such term in Section 4.01, which for the
avoidance of doubt, is August 13, 2019.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or
associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or
accept such contract or record.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by
any Governmental Authority, relating in any way to the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any Hazardous Material or to health
and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of or relating
to the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any violation of
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release
of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership interests
in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire
any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the rules and regulations promulgated thereunder.
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“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or
Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of a failure to satisfy the “minimum
funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from
any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition upon the Borrower or any of its ERISA Affiliates of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Section
4245 of ERISA) or in endangered or critical status, within the meaning of Section 432 of the Code or
Section 305 of ERISA.
“Erroneous Payment” has the meaning assigned to it in Section 8.10(a).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section
8.10(c).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published
by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Excess Cash Flow” means, for any fiscal year of the Borrower, the excess of (a) the
sum, without duplication, of (i) Consolidated EBITDA for such fiscal year, (ii) the decrease, if any, in
Current Assets minus Current Liabilities (except as a result of the reclassification of items from
short-term to long-term or vice versa) from the beginning to the end of such fiscal year and (iii) the
amount of all non-cash charges (including depreciation and amortization) to the extent deducted in
arriving at such Consolidated EBITDA (excluding any such non-cash charge to the extent that it
represents an accrual or reserve for a potential cash charge in any future fiscal year or amortization of a
prepaid cash gain that was paid in a prior fiscal year) over (b) the sum, without duplication, of:
(i) Taxes payable in cash by Borrower and its Restricted Subsidiaries with
respect to such fiscal year;
(ii) Consolidated Interest Expense for such fiscal year to the extent paid in cash;
(iii) permanent repayments or prepayments of Indebtedness, including any
premium, make-whole or penalty payments related thereto, made in cash by Borrower and its
Restricted Subsidiaries during such fiscal year from Internally Generated Cash Flow;
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(iv) the amount of Consolidated Capital Expenditures made during such period
(or paid in cash following the end of such fiscal year and prior to the date the mandatory
prepayment is required to be made pursuant to Section 2.11(b)(i); provided that any such
expenditure included in this clause (b)(iv) pursuant to this parenthetical shall not be deducted in
calculating Excess Cash Flow for the fiscal year in which it is made) to the extent financed with
Internally Generated Cash Flow and the amount of cash committed during such fiscal year to be
used to make Consolidated Capital Expenditures for which a binding agreement exists as of the
time of determination of Excess Cash Flow for such fiscal year;
(v) the increase, if any, in Current Assets minus Current Liabilities (except as a
result of the reclassification of items from short-term to long-term or vice versa) from the
beginning to the end of such fiscal year;
(vi) cash expenditures in respect of obligations under any Swap Agreement
during such period to the extent not reflected in the computation of Consolidated EBITDA or
Consolidated Interest Expense;
(vii) the amount of all non-cash credits included in arriving at such Consolidated
Net Income;
(viii) the aggregate amount of Permitted Acquisitions or other Investments to the
extent (A) made from Internally Generated Cash Flow and (B) made pursuant to Section 6.04(b),
(h), (i), (j), (l) or (n), in each case either (1) actually made by the Borrower and its Restricted
Subsidiaries in cash during such period to the extent that such expenditures are not expensed
during such period or (2) expected to be consummated or made during the period of four
consecutive fiscal quarters of the Borrower following the end of such fiscal year; provided that
any such expenditure included in this clause (b)(viii)(2) shall not be deducted in calculating
Excess Cash Flow for the fiscal year in which it is made; provided, further, if such expenditure
included in this clause (b)(viii)(2) is not actually consummated or made during the period of four
consecutive fiscal quarters of the Borrower following the end of such fiscal year, there shall be
an increase in Excess Cash Flow in the succeeding fiscal year equal to the amount of
expenditures not consummated or made;
(ix) the aggregate amount of Restricted Payments by the Borrower to the
extent (A) made from Internally Generated Cash Flow and (B) made pursuant to Section 6.07(c),
(d) and (f), in each case either (1) actually made by the Borrower and its Restricted Subsidiaries
in cash during such period to the extent that such amounts are not expensed during such period or
(2) expected to be consummated or made during the period of four consecutive fiscal quarters of
the Borrower following the end of such fiscal year; provided that any such Restricted Payment
included in this clause (b)(viii)(2) shall not be deducted in calculating Excess Cash Flow for the
fiscal year in which it is made; provided, further, if such Restricted Payment included in this
clause (b)(viii)(2) is not actually consummated or made during the period of four consecutive
fiscal quarters of the Borrower following the end of such fiscal year, there shall be an increase in
Excess Cash Flow in the succeeding fiscal year equal to the amount of Restricted Payments not
consummated or made;
(x) an amount equal to the aggregate net non-cash gain on Dispositions by
the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the
ordinary course of business) to the extent included in arriving at Consolidated EBITDA;
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(xi) without duplication of amounts deducted from Excess Cash Flow in
prior periods, at the Borrower’s option, the aggregate consideration required to be paid in cash by
the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to Permitted Acquisitions,
Consolidated Capital Expenditures or Investments to be consummated or made during the period
of four consecutive fiscal quarters of the Borrower following the end of such period; provided
that Borrower may make a good faith estimate of such amount to be required to be paid in cash to
the extent such amount is unable to be definitively determined at the date of determination of
Excess Cash Flow for the applicable period; provided further that, to the extent the aggregate
amount of cash actually utilized to finance such Permitted Acquisitions, Consolidated Capital
Expenditures or Investment during such period of four consecutive fiscal quarters is less than the
Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess
Cash Flow at the end of such period of four consecutive fiscal quarters; and
(xii) any fees or expenses paid in cash during such fiscal year in connection
with any Investment, Disposition, incurrence or repayment of Indebtedness, issuance of Equity
Interests or amendment or modification of any debt instrument (including any amendment or
other modification of this Agreement or the other Loan Documents) and including, in each case,
any such transaction consummated prior to the Closing Date and any such transaction undertaken
but not completed.
“Excess Cash Flow Period” means each fiscal year of the Borrower (commencing with
the fiscal year ending on September 30, 2020).
“Excluded Property” means (a) (i) all owned real property other than Material Real
Property, (ii) all leasehold interests in real property other than to the extent the leasehold interest is part
of a pipeline system constituting a Material Real Property and (iii) the real property owned by UGI Texas
Creek, LLC as of the Effective Date (including the Texas Creek gathering system); (b) (i) motor vehicles
and other assets subject to certificates of title and (ii) letter of credit rights in an amount less than
$50,000,000 (except, in the case of each of clauses (i) and (ii), to the extent perfection can be achieved
by filing a UCC-1 financing statement); (c) commercial tort claims in an amount less than $25,000,000;
(d) pledges and security interests prohibited by applicable law, rule or regulation (in each case, except to
the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment
provisions of the Uniform Commercial Code or similar laws) or which could require governmental
(including regulatory) consent, approval, license or authorization to be pledged (unless such consent,
approval, license or authorization has been received); (e) all (A) Equity Interests in each
non-wholly-owned entity to the extent such pledge is prohibited by the organizational documents of such
entity (except to the extent such prohibition is unenforceable after giving effect to the applicable
anti-assignment provisions of the Uniform Commercial Code or similar laws) and (B) voting Equity
Interests in each Foreign Subsidiary or FSHCO in excess of 65% of the total combined voting power of
the Equity Interests of such Subsidiary directly owned by Loan Parties; (f) rights arising under any
contract, instrument, lease, license or other agreement, or any property subject to a purchase money
security interest, Capital Lease Obligation or other arrangement, to the extent that a grant of a security
interest therein would violate or invalidate such contract, instrument, lease, license or agreement, or any
documents governing such purchase money security interest, Capital Lease Obligation or other
arrangement, or create a right of termination in favor of any other party thereto (other than the Borrower
and its Subsidiaries), in each case after giving effect to the applicable anti-assignment provisions of the
Uniform Commercial Code or similar laws; (g) those assets as to which the cost of obtaining a security
interest therein or perfection thereof would be excessive in relation to the value afforded to the Lenders
thereby, as reasonably agreed by the Borrower and the Administrative Agent; (h) any governmental
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licenses or state or local franchises, charters and authorizations, to the extent security interests in such
licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to
the applicable anti assignment provisions of the Uniform Commercial Code or similar laws; (i)
“intent-to-use” trademark applications to the extent that, and solely during the period in which, a grant of
a security interest therein would impair the validity or enforceability of such intent-to-use trademark
applications under applicable federal law; (j) any property acquired after the Effective Date that is
subject to a pre-existing security interest permitted hereunder (provided that such security interest was
not incurred in anticipation of the acquisition of such property) for so long as the contract or other
agreement governing such security interest prohibits the creation of any other security interest on such
property, except to the extent such prohibition is rendered ineffective after giving effect to applicable
anti-assignment provisions of the Uniform Commercial Code or similar laws; (k) property to the extent
the granting of a security interest in such property could reasonably be expected to result in material
adverse tax consequences to the Borrower and its Subsidiaries taken as a whole, as reasonably
determined in good faith by the Borrower and subject to the reasonable consent of the Administrative
Agent; (l) tax, payroll, healthcare, employee wage or benefit, fiduciary, escrow, defeasance, redemption
and trust accounts, the LC Collateral Account and all accounts that are swept to a zero balance on a daily
basis; (m) Margin Stock; (n) Equity Interests of any captive insurance companies; and (o) accounts
receivable, “Related Security” and “Collections” (each as defined in the Permitted Receivables Facility
Documents) (but not the proceeds thereof).
“Excluded Subsidiary” means Energy Services Funding Corporation, a Delaware
corporation.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Specified Swap
Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant
by such Loan Party of a security interest to secure, such Specified Swap Obligation (or any Guarantee
thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by
virtue of such Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such
Loan Party or the grant of such security interest becomes effective with respect to such Specified Swap
Obligation. If a Specified Swap Obligation arises under a master agreement governing more than one
swap, such exclusion shall apply only to the portion of such Specified Swap Obligation that is
attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or
measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case,
(i) imposed as a result of such Recipient being organized under the laws of, or having its principal office
or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax
(or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender,
U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with
respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on
which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an
assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office,
except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest
in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes
attributable to such Recipient’s failure to comply with Section 2.17(f) and (d) any U.S. federal
withholding Taxes imposed under FATCA.
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“Existing Permitted Receivables Facility Documents” has the meaning assigned to such
term in the definition of the term “Permitted Receivables Facility Documents”.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not materially
more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory
legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention
among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Effective Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent; provided, further, that, if the Federal Funds Effective Rate as so
determined would be less than zero, such rate shall be deemed to be zero for the purposes of this
Agreement.
“FERC” means the Federal Energy Regulatory Commission.
“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, controller or assistant treasurer of the Borrower.
“First Amendment” means that certain First Amendment to Credit Agreement, dated as
of February 23, 2023, by and among the Borrower, the lenders party thereto, the Administrative Agent
and the Collateral Agent.
“First Amendment Effective Date” has the meaning given to such term in the First
Amendment.
“First Lien/First Lien Intercreditor Agreement” means a First Lien/First Lien
Intercreditor Agreement substantially in the form of Exhibit H or other form reasonably satisfactory to
the Borrower and the Administrative Agent, by and among the Borrower, the Subsidiary Guarantors, the
Administrative Agent, the Collateral Agent and each other authorized representative and agent from time
to time party thereto.
“First Lien/Second Lien Intercreditor Agreement” means a First Lien/Second Lien
Intercreditor Agreement substantially in the form of Exhibit I or other form reasonably satisfactory to the
Borrower and the Administrative Agent, by and among the Borrower, the Subsidiary Guarantors, the
Administrative Agent, the Collateral Agent and each other authorized representative and agent from time
to time party thereto.
“Fitch” means Fitch Ratings Inc.
“Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of
1968, (b) the Flood Disaster Protection Act of 1973, (c) the National Flood Insurance Reform Act of
1994, (d) the Flood Insurance Reform Act of 2004 and (e) the Biggert-Waters Flood Insurance Reform
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Act of 2012, in each case, as now or hereafter in effect or any successor statute thereto, and in each case,
together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing,
implementing or interpreting any of the foregoing, as amended or modified from time to time.
“Floor” means a rate of interest equal to (i) with respect to SOFR Loans, 0.50% or (ii)
with respect to ABR Loans, 1.00%.
“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender, with respect to
the Borrower, that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender, with
respect to the Borrower, that is resident or organized under the laws of a jurisdiction other than that in
which the Borrower is resident for tax purposes.
“Foreign Plan” means each employee benefit plan (within the meaning of Section 3(3) of
ERISA, whether or not subject to ERISA) that is not subject to U.S. law and is maintained or contributed
to by any Loan Party or any ERISA Affiliate.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fourth Amendment” means that certain Fourth Amendment to Credit Agreement, dated
as of June 30, 2026, by and among the Borrower, the lenders party thereto, the Administrative Agent and
the Collateral Agent.
“Fourth Amendment Effective Date” has the meaning given to such term in the Fourth
Amendment.
“FSHCO” means a Domestic Subsidiary substantially all of the assets of which
constitute Equity Interests of Foreign Subsidiaries.
“GAAP” means generally accepted accounting principles in the United States of
America.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness
or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to
purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the ordinary course of business, but
shall include performance guaranties and guaranties with respect to surety bonds and similar bonding
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obligations incurred in the ordinary course of business and guaranties of Swap Agreements incurred in
the ordinary course of business.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law due
to their hazardous or deleterious properties.
“Hostile Acquisition” means (a) the acquisition of the Equity Interests of a Person
through a tender offer or similar solicitation of the owners of such Equity Interests which has not been
approved (prior to such acquisition) by the board of directors (or any other applicable governing body) of
such Person or by similar action if such Person is not a corporation and (b) any such acquisition as to
which such approval has been withdrawn.
“IBA” has the meaning assigned to such term in Section 1.06.
“Increasing Lender” has the meaning assigned to such term in Section 2.20(a).
“Incremental Cap” means, at any time, the sum of:
(a) $150,000,000, minus the aggregate principal amount of Incremental Term Loans
and Incremental Equivalent Debt that have been incurred (whether or not outstanding) prior to such time;
and
(b) an unlimited amount so long as on a Pro Forma Basis after giving effect to the
incurrence of the relevant Incremental Term Loan or Incremental Equivalent Debt, the Consolidated
Secured Leverage Ratio at such time does not exceed 3.00:1.00.
“Incremental Equivalent Debt” means the Indebtedness incurred pursuant to Section
6.01(e).
“Incremental Term Agreement” has the meaning assigned to such term in Section
2.20(c).
“Incremental Term Commitment” means the commitment of any Incremental Term
Lender to make an Incremental Term Loan.
“Incremental Term Lender” means, as of any date of determination, each Lender having
an Incremental Term Commitment or that holds Incremental Term Loans.
“Incremental Term Loans” means the term loans made by the Incremental Term Lenders
to the Borrower pursuant to Section 2.20 and an Incremental Term Agreement.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to advances of any kind (other than advances in the form of
customary deposits in the ordinary course of business), (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding current accounts payable
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incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been
assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations
of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect
of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (k) all Attributable Receivables Indebtedness of such Person and (l) all
obligations of such Person under Sale and Leaseback Transactions. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor. For the avoidance of doubt, Indebtedness shall not include performance
guaranties, obligations with respect to Swap Agreements and Guarantees of surety bonds and similar
bonding obligations in the ordinary course of business.
“Indebtedness Incurrence Conditions” means, with respect to the incurrence of any
Indebtedness:
(a) immediately prior to the incurrence of such Indebtedness and immediately
thereafter and after giving effect to such incurrence, (i) no Default or Event of Default is or would be in
existence and (ii) the representations and warranties set forth in Article III shall be true and correct in all
material respects (except that any representation or warranty which is already qualified as to materiality
or by reference to Material Adverse Effect shall be true and correct in all respects), provided that (x) if
such Indebtedness is being used to finance a Permitted Acquisition or similar Investment or irrevocable
payment, repurchase or redemption of Indebtedness, clause (a)(i) above shall be changed to no Default or
Event of Default described in Section 7.01(a), (b), (h), (i) or (j) is or would be in existence and (y) if such
Indebtedness is being used to finance a Permitted Acquisition or similar Investment, the representations
and warranties applicable to clause (a)(ii) above shall be limited to the Specified Representations;
(b) the Borrower shall be in compliance on a Pro Forma Basis with the financial
covenant set forth in Section 6.11, giving effect to the incurrence of the applicable Indebtedness as of the
first day of the applicable period; and the Administrative Agent shall have received a certificate of the
President, a Vice President or a Financial Officer of the Borrower, dated the date of incurrence of such
Indebtedness, certifying compliance with the conditions set forth in clause (a) above and this clause (b);
(c) the maturity date of such Indebtedness shall be no earlier than Maturity Date
with respect to the Initial Term Loans;
(d) such Indebtedness shall not have a shorter Weighted Average Life to Maturity
than the Initial Term Loans;
(e) all fees and expenses owing in respect of such incurrence to the Administrative
Agent and the Lenders shall have been paid;
(f) if such Indebtedness is incurred on or prior to the date that is 12 months after the
First Amendment Effective Date and the All-In Yield on such Indebtedness would exceed the All-In
Yield on the Initial Term Loans by more than 0.75% per annum, the Applicable Rate for the Initial Term
Loans shall automatically be increased to the extent of such excess (effective upon the incurrence of such
Indebtedness) such that the All-In Yield on such Indebtedness shall exceed the All-In Yield on the Initial
Term Loans by no more than 0.75% per annum; provided, that if such Indebtedness include a Term
SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor
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applicable to the Initial Term Loans, such differential between interest rate floors shall be included in the
calculation of All-In Yield for purposes of this clause (f) but only to the extent an increase in the Term
SOFR or Alternate Base Rate floor applicable to the Initial Term Loans would cause an increase in the
interest rate then in effect thereunder, and in such case the Term SOFR or Alternate Base Rate floors (but
not the Applicable Rate) applicable to the Initial Term Loans shall be increased to the extent of such
differential between interest rate floors; provided, further that in the case of Incremental Equivalent Debt,
this clause (f) shall only apply if such Incremental Equivalent Debt is in the form of term loans secured
on a pari passu basis with the Initial Term Loans;
(g) (i) in the case of Incremental Term Loans, the terms and documentation in
respect thereof (other than those described in clauses (c), (d) and (f) above), to the extent not consistent
with the Initial Term Loans, shall be reasonably satisfactory to the Administrative Agent and (ii) in the
case of Incremental Equivalent Debt, the terms of such Incremental Equivalent Debt shall (except to the
extent permitted by clauses (c), (d) and (f) above) either, at the option of the Borrower, (x) reflect market
terms and conditions (taken as a whole) at the time of incurrence or (y) be reasonably satisfactory to the
Administrative Agent (except, in the case of either clause (x) or (y), for covenants or other provisions
applicable only to periods after the latest maturity date of the Term Loans) (it being understood that to
the extent that any financial maintenance or other covenant that is more restrictive than the covenant in
Section 6.11 is added for the benefit of any such Incremental Equivalent Debt, such financial
maintenance or other covenant shall also be automatically added for the benefit of the Initial Term
Loans);
(h) no obligor of such Indebtedness shall be a Person that is not a Loan Party and no
such Indebtedness shall be secured by assets that do not constitute Collateral;
(i) if such Indebtedness is secured (A) on a pari passu basis with the Initial Term
Loans pursuant to security documents that are not the Collateral Documents, such Indebtedness shall be
subject to the First Lien/First Lien Intercreditor Agreement or (B) on a junior basis to the Initial Term
Loans, such Indebtedness shall be subject to the First Lien/Second Lien Intercreditor Agreement; and
(j) such Indebtedness shall not have any mandatory prepayment or redemption
features (other than customary asset sale events, insurance and condemnation proceeds events, change of
control offers or events of default and, in the case of loans, excess cash flow sweeps) that could result in
prepayments or redemptions of such Indebtedness prior to the Maturity Date of the Initial Term Loans
(and any such permitted mandatory prepayments shall be required to be shared, for the avoidance of
doubt, on at least a pro rata basis with the Initial Term Loans).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of any Loan Party under any Loan
Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender
Parent, (c) the Borrower, any of its Subsidiaries or any of its Affiliates (except as set forth in Section
9.04(e)), (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of,
a natural person or relative(s) thereof or (e) a Disqualified Institution.
“Information Memorandum” means the Confidential Information Memorandum dated
July 2019 relating to the Borrower and the Transactions.
“Initial Term Commitment” means, with respect to each Lender, such Lender’s
obligation to make an Initial Term Loan to the Borrower in an aggregate amount not to exceed the
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amount set forth opposite such Lender’s name on Schedule I to the SecondFourth Amendment under the
caption “20242026 Refinancing Term Commitment”, respectively, or in any Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement. After advancing the Initial Term Loan, each
reference to a Lender’s Initial Term Commitment shall refer to that Lender’s Applicable Percentage of
the Initial Term Loans.
“Initial Term Lender” means, as of any date of determination, each Lender having an
Initial Term Commitment or that holds Initial Term Loans.
“Initial Term Loans” means (i) the term loans made by the Initial Term Lenders to the
Borrower pursuant to Section 2.01, (ii) the “2023 Refinancing Term Loans” and “2023 Incremental Term
Loans” as defined in, and issued under, the First Amendment and, (iii) the “2024 Refinancing Term
Loans” as defined in, and issued under, the Second Amendment and (iv) the “2026 Refinancing Term
Loans” as defined in, and issued under, the Fourth Amendment.
“Intellectual Property” means any and all intellectual property and proprietary rights,
including any and all (i) patents and patent applications (including all reissues, divisionals, continuations,
continuations-in-part, extensions and reexaminations thereof), (ii) trademarks, service marks, trade dress,
logos, domain names, rights of publicity, trade names and corporate names (whether or not registered),
including all registrations and applications for registration of the foregoing and all goodwill associated
therewith, (iii) copyrights (whether or not registered) and registrations and applications for registration
thereof and (iv) trade secrets and know-how.
“Intellectual Property Security Agreements” has the meaning assigned to such term in
the Security Agreement.
“Intercreditor Agreement” means the First Lien/First Lien Intercreditor Agreement or the
First Lien/Second Lien Intercreditor Agreement.
“Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.08, which shall be substantially in the form attached hereto as
Exhibit E, or any other form approved by the Administrative Agent.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day
of each March, June, September and December and the Maturity Date and (b) with respect to any SOFR
Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a SOFR Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first
day of such Interest Period and the Maturity Date.
“Interest Period” means with respect to any SOFR Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day in the calendar month
that is one, three or six months thereafter (in each case, subject to availability thereof), as the Borrower
may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in the case of a SOFR
Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period pertaining to a
SOFR Borrowing that commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on
the last Business Day of the last calendar month of such Interest Period and (iii) no tenor that has been
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removed from this definition pursuant to Section 2.23(d) shall be available for election. For purposes
hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made.
“Internally Generated Cash Flow” means any cash of the Borrower and its Restricted
Subsidiaries that is not generated from an incurrence of Indebtedness or an issuance of Equity Interests or
a Sale and Leaseback Transaction.
“Investment” has the meaning assigned to such term in Section 6.04.
“IRS” means the United States Internal Revenue Service.
“Junior Indebtedness” means any Indebtedness for borrowed money that is secured by a
lien on the Collateral that is junior to the liens securing the Obligations hereunder, or unsecured or
contractually subordinated to the Obligations in security or right of payment.
“LC Collateral Account” has the meaning assigned to such term in the Revolving Credit
Agreement in effect as of the date hereof.
“Lender Parent” means, with respect to any Lender, any Person as to which such Lender
is, directly or indirectly, a subsidiary.
“Lenders” means the Initial Term Lenders, the Incremental Term Lenders, the “2023
Incremental Term Lender” and “2023 Refinancing Term Lender” as defined in, and under, the First
Amendment or, the “2024 Refinancing Term Lender” as defined in, and under, the Second Amendment
or the “2026 Refinancing Term Lender” as defined in, and under, the Fourth Amendment.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar right of a third party with
respect to such securities.
“Loan Documents” means this Agreement, the Subsidiary Guaranty, the Collateral
Documents, the First Lien/First Lien Intercreditor Agreement, each other Intercreditor Agreement (if in
effect), any promissory notes issued pursuant to Section 2.10(e) of this Agreement, any fee letter
agreements executed by or on behalf of any Loan Party in connection with this Agreement, each
Borrowing Request delivered pursuant to Section 2.03, each notice of continuation or conversion
delivered pursuant to Section 2.08 and each certificate delivered pursuant to Section 5.01(c), and all
amendments, supplements and modifications of each of the foregoing. Any reference in the Agreement
or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules
thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to
this Agreement or such Loan Document as the same may be in effect at any and all times such reference
becomes operative.
“Loan Parties” means, collectively, the Borrower and the Subsidiary Guarantors.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
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“Material Acquisition” has the meaning assigned to such term in the definition of
“Consolidated EBITDA”.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or condition (financial or otherwise) of the Borrower and the Restricted Subsidiaries taken as
a whole, (b) the validity or enforceability of this Agreement or any and all other Loan Documents, (c) the
ability of the Borrower or any Subsidiary Guarantor to perform its obligations hereunder or under any
other Loan Documents or (d) the rights or remedies of the Administrative Agent and the Lenders
hereunder or under any other Loan Document.
“Maximum Consolidated Total Leverage Ratio” means a Consolidated Total Leverage
Ratio no greater than 3.50 to 1.00, or during an Acquisition Period, 4.00 to 1.00.
“Material Disposition” has the meaning assigned to such term in the definition of
“Consolidated EBITDA”.
“Material Domestic Subsidiary” means each Domestic Subsidiary that is not an
Unrestricted Subsidiary or an Excluded Subsidiary (i) which, as of the most recent fiscal quarter of the
Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements
have been delivered pursuant to Section 5.01, contributed greater than ten percent (10.0%) of the
Borrower’s Consolidated EBITDA for such period or (ii) which contributed greater than ten percent
(10.0%) of the Borrower’s Consolidated Total Assets as of such date; provided that if at any time the
aggregate amount of the EBITDA or consolidated total assets of all Domestic Subsidiaries that are not
Material Domestic Subsidiaries exceeds fifteen percent (15.0%) of the Borrower’s Consolidated
EBITDA for any such period or fifteen percent (15.0%) of the Borrower’s Consolidated Total Assets as
of the end of any fiscal year, the Borrower (or, in the event the Borrower has failed to do so within thirty
(30) days (or such later date as may be agreed upon by the Administrative Agent), the Administrative
Agent) shall designate sufficient Domestic Subsidiaries as “Material Domestic Subsidiaries” to eliminate
such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material
Domestic Subsidiaries.
“Material Indebtedness” means Indebtedness (other than the Loans), or obligations in
respect of one or more Swap Agreements, of any one or more of the Borrower and its Restricted
Subsidiaries in an aggregate principal amount exceeding $50,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Restricted
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.
“Material Real Property” means each pipeline system (including any fee-owned or
leasehold interest that is a part thereof) and each fee-owned real property of the Loan Parties, in each
case with a book value in excess of $75,000,000 (i) as of the Effective Date (with respect to each such
real property owned on the Effective Date) or (ii) as of the date of acquisition of such real property (with
respect to any such real property acquired after the Effective Date), including each real property listed on
Schedule 5.09.
“Maturity Date” means (i) with respect to the Initial Term Loans, February 22, 2030 and
(ii) with respect to the Incremental Term Loans, the date specified in the applicable documentation in
respect thereof.
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“Moody’s” means Moody’s Investors Service, Inc.
“Mortgage Policy” has the meaning assigned to such term in Section 5.09.
“Mortgaged Property” means each Material Real Property that is required to be subject
to a Mortgage pursuant to Section 5.09 or 5.11.
“Mortgages” means, collectively, the mortgages, deeds of trust, trust deeds, and deeds to
secure debt, as applicable, that are required to be executed and delivered pursuant to Sections 5.09 and
5.11 in each case substantially in the form of Exhibit N attached hereto or any other form reasonably
approved by the Administrative Agent and the Borrower, in each case creating and evidencing a Lien on
a Mortgaged Property, with such terms and provisions as may be required by the applicable laws of the
relevant jurisdiction.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net Proceeds” means:
(a) with respect to any Prepayment Disposition, (a) the aggregate cash proceeds received
by the Borrower or any Restricted Subsidiary in respect of such Prepayment Disposition (including,
without limitation, any cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or otherwise, but only as and when received, but excluding the assumption
by the acquiring person of Indebtedness relating to the disposed assets or other consideration received in
any other non-cash form and excluding any interest payments), net of (b) (i) all reasonable fees and
out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (ii) the
amount of all payments required to be made as a result of such event to repay Indebtedness (other than
the Loans and other Indebtedness secured on a pari passu or junior lien basis with the Liens securing the
Obligations under this Agreement) secured by such asset or otherwise subject to mandatory prepayment
as a result of such event, (iii) the amount of all taxes paid or reasonably estimated by the Borrower to be
payable as a result thereof (after taking into account any available tax credits or deductions and any tax
sharing arrangements related solely to such disposition) and (iv) the amount of any reserves established
to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such
event occurred or the next succeeding year and that are directly attributable to such event (as determined
reasonably and in good faith by a Financial Officer); provided, that no proceeds realized in a single
transaction or series of related transactions shall constitute Net Proceeds unless such net cash proceeds
shall exceed $25,000,000; and
(b) with respect to the incurrence of Indebtedness or issuance of Equity Interests or
equity-linked securities, the aggregate cash proceeds received by the Borrower or any Restricted
Subsidiary in respect of such incurrence or issuance, as applicable, net of the direct costs of such
incurrence or issuance, as applicable (including, without limitation, legal, accounting and investment
banking fees, and brokerage and sales commissions).
“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d).
“Non-U.S. Lender” means a Lender that is not a U.S. Person.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations
and indebtedness (including interest and fees accruing during the pendency of any bankruptcy,
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insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding), obligations and liabilities of any of the Borrower and its Restricted Subsidiaries to any of
the Lenders, the Administrative Agent or any indemnified party, individually or collectively, existing on
the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured
or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of
any of the Loans made or reimbursement or other obligations incurred or any of the other instruments at
any time evidencing any thereof; provided that the definition of “Obligations” shall not create or include
any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as
applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any
obligations of any Loan Party.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the
Treasury.
“Other Applicable First Lien Indebtedness” has the meaning assigned to such term in
Section 2.11(c).
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such Tax
(other than connections arising from such Recipient having executed, delivered, become a party to,
performed its obligations under, received payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an
interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery,
performance, enforcement or registration of, from the receipt or perfection of a security interest under, or
otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).
“Parent” means UGI Corporation, a corporation incorporated in the Commonwealth of
Pennsylvania.
“Participant” has the meaning assigned to such term in Section 9.04(c).
“Participant Register” has the meaning assigned to such term in Section 9.04(c).
“Patriot Act” has the meaning assigned to such term in Section 9.14.
“Payment Recipient” has the meaning assigned to it in Section 8.10(a).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in
ERISA and any successor entity performing similar functions.
“Perfection Certificate” means a certificate in the form of Exhibit L hereto, as the same
shall be supplemented from time to time.
“Perfection Certificate Supplement” means a supplement to the Perfection Certificate
substantially in the form of Exhibit M.
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“Periodic Term SOFR Determination Day” has the meaning specified in the definition of
“Term SOFR”.
“Permitted Acquisition” means any acquisition (whether by purchase, merger,
consolidation or otherwise but excluding in any event a Hostile Acquisition) or series of related
acquisitions by the Borrower or any Restricted Subsidiary of (i) all or substantially all the assets of or
(ii) all or substantially all the Equity Interests in, a Person or division or line of business of a Person, if,
at the time of and immediately after giving effect thereto, (a) no Default or Event of Default has occurred
and is continuing or would arise after giving effect thereto, (b) such Person or division or line of business
is engaged in the same or a similar line of business as the Borrower and the Restricted Subsidiaries or a
business reasonably related thereto, (c) all actions required to be taken with respect to such acquired or
newly formed Restricted Subsidiary under Section 5.09 shall have been taken, (d) the Borrower and the
Restricted Subsidiaries are in compliance, on a Pro Forma Basis after giving effect to such acquisition,
with the covenant contained in Section 6.11 recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements are available, as if such acquisition (and any
related incurrence or repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) had occurred on the first day of
each relevant period for testing such compliance and, if the aggregate consideration paid in respect of
such acquisition exceeds $50,000,000, the Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer of the Borrower to such effect, together with all relevant financial
information, statements and projections requested by the Administrative Agent and (e) in the case of an
acquisition or merger involving the Borrower or a Restricted Subsidiary, the Borrower or such Restricted
Subsidiary is the surviving entity of such merger and/or consolidation in accordance with
Section 6.03(a).
“Permitted Encumbrances” means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, lessor’s,
landlord’s and other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than sixty (60) days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;
(e) judgment Liens in respect of judgments that do not constitute an Event of
Default under Section 7.01(k);
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Restricted Subsidiary;
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(g) other deposits made to secure liability to insurance carriers under insurance or
self-insurance arrangements, in each case entered into in the ordinary course of business;
(h) Liens securing reimbursement obligations under commercial letters of credit, in
each case entered into in the ordinary course of business, provided in each case that such Liens cover
only the title documents and related goods (and any proceeds thereof) covered by the related commercial
letter of credit;
(i) Liens arising by virtue of any statutory or common law or customary contractual
provision relating to banker’s liens, rights of setoff or similar rights as to deposit accounts or other funds
maintained with a depository institution, in each case entered into in the ordinary course of business;
(j) customary protective Liens granted in the ordinary course of business by the
Borrower or any Restricted Subsidiary to the extent required pursuant to applicable law or contract for
the management or storage of inventory associated with storage capacity in relation to utilities or any
entity subject to FERC regulations;
(k) customary Liens granted in the ordinary course of business to utilities or any
entity subject to FERC regulations in relation to receivables purchase programs (“A/R Purchase
Programs”);
(l) purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to personal property leased pursuant to operating leases entered into in the
ordinary course of business of the Borrower and its Subsidiaries; and
(m) any interest or title of a licensor, licensee, sublicensor, lessor, lessee, sublessor,
or sublessee with respect to any assets under any license or lease agreement entered into in the ordinary
course of business; provided that the same do not interfere in any material respect with the business of
the Borrower or its Subsidiaries or materially detract from the value of the relevant assets of the
Borrower or its Subsidiaries.
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of America), in each case maturing
within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P
or from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
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(d) fully collateralized repurchase agreements with a term of not more than thirty
(30) days for securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940 and (ii) are rated AAA by S&P and Aaa by Moody’s; and
(f) short-term, highly liquid investments that are readily convertible into cash,
whose original maturity is three (3) months or less and which qualifies for classification as cash
equivalents on the balance sheet or cash flow statement in accordance with GAAP.
“Permitted Loan Purchase” has the meaning specified in Section 9.04(e).
“Permitted Receivables Facility” means the receivables facility or facilities created under
the Permitted Receivables Facility Documents, providing for the sale or pledge by the Borrower and/or
one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby providing
financing to the Borrower and the Receivables Sellers) to the Receivables Entity (either directly or
through another Receivables Seller), which in turn shall sell or pledge interests in the respective
Permitted Receivables Facility Assets to third-party investors pursuant to the Permitted Receivables
Facility Documents (with the Receivables Entity permitted to issue investor certificates, purchased
interest certificates or other similar documentation evidencing interests in the Permitted Receivables
Facility Assets) in return for the cash used by the Receivables Entity to purchase the Permitted
Receivables Facility Assets from the Borrower and/or the respective Receivables Sellers, in each case as
more fully set forth in the Permitted Receivables Facility Documents.
“Permitted Receivables Facility Assets” means (i) Receivables (whether now existing or
arising in the future) of the Borrower and its Restricted Subsidiaries which are transferred or pledged to
the Receivables Entity pursuant to the Permitted Receivables Facility and any related Permitted
Receivables Related Assets which are also so transferred or pledged to the Receivables Entity and all
proceeds thereof and (ii) loans to the Borrower and its Restricted Subsidiaries secured by Receivables
(whether now existing or arising in the future) and any Permitted Receivables Related Assets of the
Borrower and its Restricted Subsidiaries which are made pursuant to the Permitted Receivables Facility.
“Permitted Receivables Facility Documents” means (a) each of the documents and
agreements relating to the receivables facility for the Excluded Subsidiary, and all amendments thereto,
in effect as of the date hereof (the “Existing Permitted Receivables Facility Documents”), as any of the
Existing Permitted Receivables Facility Documents may be further amended, restated, supplemented,
extended or otherwise modified from time to time so long as any such further amendments, restatements,
supplements, extensions or modifications (i) do not impose any conditions or requirements the result of
which would cause the Excluded Subsidiary to fail to satisfy the requirements of clause (y) of the
definition of “Receivables Entity” (it being understood that the Excluded Subsidiary satisfies clause (y)
of the definition of “Receivables Entity” as of the date hereof) and (ii) do not eliminate or materially
modify any right of the Excluded Subsidiary to voluntarily terminate the Permitted Receivables Facility
evidenced thereby; and (b) each of the documents and agreements entered into in connection with any
other Permitted Receivables Facility, including all documents and agreements relating to the issuance,
funding and/or purchase of certificates and purchased interests, all of which documents and agreements
under this clause (b) shall be in form and substance reasonably satisfactory to the Administrative Agent,
in each case as such documents and agreements described in this clause (b) may be amended, modified,
supplemented, refinanced or replaced from time to time so long as any such amendments, modifications,
supplements, refinancings or replacements (i) do not impose any conditions or requirements the result of
which would cause the Excluded Subsidiary or other Receivables Entity to fail to satisfy the requirements
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of clause (y) of the definition of “Receivables Entity”, (ii) do not impose any conditions or requirements
on the Borrower or any of its Restricted Subsidiaries (other than the applicable Receivables Entity) that,
taken as a whole, are more restrictive in any material respect than those in existence immediately prior to
any such amendment, modification, supplement, refinancing or replacement, (iii) could not reasonably be
expected to impair the Borrower’s ability to repay the Obligations as and when due (for the avoidance of
doubt, the sale of Receivables and Permitted Receivables Related Assets shall not in and of itself be
deemed in violation of this subclause (iii)), (iv) do not eliminate or materially modify any right of the
Borrower or the applicable Receivables Entity to voluntarily terminate the Permitted Receivables Facility
evidenced thereby; and (v) are not material and adverse in any way to the interests of the Lenders;
provided, that with respect to any such documents and agreements described in this clause (b), (x) any
extension of maturity, (y) any change in commitments (subject to the limitations set forth in
Section 6.01(c)) or (z) any modification of the advance rates thereunder shall be deemed not to be in
violation of subclauses (i) through (v) above.
“Permitted Receivables Related Assets” means any other assets that are customarily
transferred or in respect of which security interests are customarily granted in connection with asset
securitization transactions involving receivables similar to Receivables and any collections or proceeds
of any of the foregoing; provided, that the other assets included within the defined term “Pool Assets” as
defined in the Existing Permitted Receivables Facility Documents as of the date hereof are deemed to be
“ Permitted Receivables Related Assets”.
“Permitted Refinancing Terms” means, with respect to any refinancing of any Junior
Indebtedness, (a) the maturity date of such refinancing Indebtedness shall be no earlier than maturity date
with respect to the Indebtedness being refinanced, (b) such refinancing Indebtedness shall not have a
shorter Weighted Average Life to Maturity than the Indebtedness being refinanced, (c) such refinancing
Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Guarantor that
refinances Indebtedness of the Borrower or a Guarantor or (y) Indebtedness of a Borrower or a Restricted
Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary, (d) to the extent such refinancing
Indebtedness refinances (x) Indebtedness junior in right of payment to the Loans, such refinancing
Indebtedness is junior in right of payment to the Loans and (y) Indebtedness secured by a Lien on the
Collateral that is pari passu or junior to the Lien on the Collateral securing the Obligations hereunder,
such refinancing Indebtedness is unsecured or secured by a Lien on the Collateral that is pari passu with
or junior to the Lien on the Collateral securing the Obligations hereunder but in any event not more
senior than such refinanced Indebtedness with respect to the Lien on the Collateral securing the
Obligations hereunder, and (e) if such refinancing Indebtedness is secured (A) on a pari passu basis with
the Initial Term Loans pursuant to security documents that are not the Collateral Documents, such
refinancing Indebtedness shall be subject to the First Lien/First Lien Intercreditor Agreement or (B) on a
junior basis to the Initial Term Loans, such refinancing Indebtedness shall be subject to the First
Lien/Second Lien Intercreditor Agreement.
“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and
in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section
3(42) of ERISA.
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“Prepayment Disposition” means any Disposition made under Section 6.03(a)(iv)(E) or
any Sale and Leaseback Transaction made under Section 6.10.
“Prime Rate” means the rate of interest per annum determined from time to time by
HSBC Bank USA, N.A. as its prime rate in effect at its principal office in New York City and notified to
the Borrower. The prime rate is a rate set by HSBC Bank USA, N.A. based upon various factors
including HSBC Bank USA, N.A.’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below
such rate.
“Private Lender” means any Lender that is not a Public Lender.
“Pro Forma Basis” means, with respect to any event, that the Borrower is in compliance
on a Pro Forma Basis with the applicable covenant, calculation or requirement herein recomputed as if
the event with respect to which compliance on a Pro Forma Basis is being tested had occurred on the first
day of the four fiscal quarter period most recently ended on or prior to such date for which financial
statements have been delivered pursuant to Section 5.01.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of
Labor, as any such exemption may be amended from time to time.
“Public Lender” means a Lender that has personnel who do not wish to receive material
non-public information with respect to the Borrower and its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related activities with respect
to such Persons’ securities.
“Recipient” means (a) the Administrative Agent and (b) any Lender, as applicable.
“Receivables” means all accounts receivable (including, without limitation, all rights to
payment created by or arising from time to time from sales of goods, leases of goods or the rendition of
services rendered no matter how evidenced whether or not earned by performance).
“Receivables Entity” means (x) the Excluded Subsidiary and (y) each other
wholly-owned Subsidiary of the Borrower which engages in no activities other than in connection with
the financing of accounts receivable of the Receivables Sellers and which is designated (as provided
below) as the “Receivables Entity” (a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by the Borrower or any other Subsidiary of the
Borrower (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any
other Subsidiary of the Borrower in any way (other than pursuant to Standard Securitization
Undertakings) or (iii) subjects any property or asset of the Borrower or any other Subsidiary of the
Borrower, directly or indirectly, contingently or otherwise, to the satisfaction thereof (other than pursuant
to Standard Securitization Undertakings), (b) with which neither the Borrower nor any of its Subsidiaries
has any contract, agreement, arrangement or understanding (other than pursuant to the Permitted
Receivables Facility Documents (including with respect to fees payable in the ordinary course of
business in connection with the servicing of accounts receivable and related assets)) on terms less
favorable to the Borrower or such Subsidiary than those that might be obtained at the time from persons
that are not Affiliates of the Borrower, and (c) to which neither the Borrower nor any other Subsidiary of
the Borrower has any obligation to maintain or preserve such entity’s financial condition or cause such
entity to achieve certain levels of operating results. Any such designation shall be evidenced to the
Administrative Agent by filing with the Administrative Agent an officer’s certificate of the Borrower
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certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such
designation complied with the foregoing conditions.
“Receivables Sellers” means the Borrower and those Subsidiaries that are from time to
time party to the Permitted Receivables Facility Documents.
“Refinancing Amendment” has the meaning assigned to such term in Section 2.21.
“Refinancing Lender” has the meaning assigned to such term in Section 2.21.
“Refinancing Loans” has the meaning assigned to such term in Section 2.21.
“Register” has the meaning assigned to such term in Section 9.04.
“Regulation T” means Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents, advisors and representatives of such Person and
such Person’s Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve
Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the
Federal Reserve Bank of New York, or any successor thereto.
“Required Lenders” means, at any time, Lenders having total Credit Exposures and
unused Commitments representing more than fifty percent (50%) of the sum of the total Credit
Exposures and unused Commitments at such time.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the President, a Financial Officer, other executive officer
or senior or executive vice president of the Borrower.
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any Restricted
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such Equity Interests in the Borrower or any Restricted Subsidiary or any option,
warrant or other right to acquire any such Equity Interests in the Borrower or any Restricted Subsidiary.
“Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted
Subsidiary.
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“Retained Percentage” means, with respect to any Excess Cash Flow Period, (a) 100%
minus (b) the Applicable ECF Percentage with respect to such Excess Cash Flow Period.
“Revolving Credit Agreement” means that certain Second Amended and Restated Credit
Agreement, dated as of February 29, 2016, as amended by Amendment No. 1, dated as of August 13,
2019, and as further amended, restated, amended and restated, supplemented or otherwise modified from
time to time, among the Borrower, the lenders party thereto, JPMorgan Chase Bank, N.A., as the
Administrative Agent, and the other parties thereto.
“RP Leverage Ratio” means, as of any date of determination, the ratio of (i)
Consolidated Total Indebtedness to (ii) Consolidated EBITDA for the period of four (4) consecutive
fiscal quarters ending with the end of such fiscal quarter, all calculated for the Borrower and its
Subsidiaries on a consolidated basis.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial
Services LLC business.
“Sale and Leaseback Transaction” means any sale or other transfer of any property or
asset by any Person with the intent to lease such property or asset as lessee.
“Sanctioned Country” means, at any time, a country, region or territory which is itself
the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea
and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations
Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the
United Kingdom, or other relevant sanctions authority, (b) any Person operating, organized or resident in
a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the
foregoing clauses (a) or (b) or (d) any Person otherwise the subject of any Sanctions.
“Sanctions” means all economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those administered by
OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union,
any European Union member state, His Majesty’s Treasury of the United Kingdom or other relevant
sanctions authority.
“SEC” means the Securities and Exchange Commission of the United States of America.
“Second Amendment” means that certain Second Amendment to Credit Agreement,
dated as of June 28, 2024, by and among the Borrower, the lenders party thereto, the Administrative
Agent and the Collateral Agent.
“Second Amendment Effective Date” has the meaning given to such term in the Second
Amendment.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent,
the Lenders, and each sub-agent appointed by the Administrative Agent from time to time pursuant to
Article VIII with matters relating to any Collateral Document.
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“Security Agreement” means the Security Agreement substantially in the form of Exhibit
K attached hereto, dated as of the Effective Date, among the Borrower, the Subsidiary Guarantors from
time to time party thereto and the Collateral Agent.
“Security Agreement Supplement” has the meaning assigned to such term in the Security
Agreement.
“SOFR” means a rate equal to the secured overnight financing rate as administered by
the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate).
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such
Borrowing.
“SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR, other than
pursuant to clause (c) of the definition of “Alternate Base Rate”.
“Solvent” means, with respect to the Borrower and its Subsidiaries, (i) the fair value of
the assets of the Borrower and its Subsidiaries taken as a whole as a going concern, at a fair valuation,
exceed and will exceed their debts and liabilities, subordinated, contingent or otherwise; (ii) the present
fair saleable value of the property of the Borrower and its Subsidiaries taken as a whole as a going
concern will be greater than the amount that will be required to pay the probable liability of their debts
and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (iii) the Borrower and its Subsidiaries will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and
(iv) the Borrower and its Subsidiaries do not and will not have unreasonably small capital with which to
conduct the business in which they are engaged as such business is presently conducted and is proposed
to be conducted in the future.
“Specified Representations” means the representations and warranties of the Borrower
set forth in Sections 3.01 (solely to the extent of the first sentence thereof), 3.02, 3.03(b), 3.03(c) (solely
to the extent relating to the Revolving Credit Agreement, any Permitted Receivables Facility of any Loan
Party or any other indenture, agreement or instrument in respect of Indebtedness in an aggregate principal
amount exceeding $35,000,000 individually), 3.08, 3.12, 3.16 and 3.17 of this Agreement.
“Specified Swap Obligation” means, with respect to any Loan Party, any obligation to
pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning
of Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.
“Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Borrower or any Subsidiary thereof in connection with the Permitted
Receivables Facility which are reasonably customary in an accounts receivable financing transaction;
provided, that the representations, warranties, covenants and indemnities set forth in the Existing
Permitted Receivables Facility Documents are deemed to be “Standard Securitization Undertakings”.
“Subordinated Indebtedness” means any Indebtedness of the Borrower or any Restricted
Subsidiary the payment of which is subordinated to payment of the obligations under the Loan
Documents.
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“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of which
would be consolidated with those of the parent in the parent’s consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity (a) of which securities or
other ownership interests representing more than 50% of the equity or more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of the Borrower.
“Subsidiary Guarantor” means each of the Restricted Subsidiaries of the Borrower party
to the Subsidiary Guaranty as of the Effective Date and each Material Domestic Subsidiary other than a
Receivables Entity. The Subsidiary Guarantors on the Effective Date are identified as such in
Schedule 3.01 hereto.
“Subsidiary Guaranty” means that certain Guaranty dated as of the Effective Date in the
form of Exhibit J (including any and all supplements thereto) and executed by each Subsidiary
Guarantor, as amended, restated, supplemented or otherwise modified from time to time.
“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing
indices or measures of economic, financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided that no phantom stock or similar plan providing for payments
only on account of services provided by current or former directors, officers, employees or consultants of
the Borrower or the Restricted Subsidiaries shall be a Swap Agreement.
“Target” has the meaning assigned to such term in the definition of “Columbia
Acquisition”.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), value added taxes, or any other goods and services, use or
sales taxes, assessments, fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
“Term Lenders” means, as of any date of determination, each Lender having an Initial
Term Commitment or Incremental Term Commitment, or that holds Term Loans, including, for the
avoidance of doubt, any “2023 Incremental Term Lender” and “2023 Refinancing Term Lender” as
defined in, and under, the First Amendment and, any “2024 Refinancing Term Lender” as defined in, and
under, the Second Amendment and any “2026 Refinancing Term Lender” as defined in, and under, the
Fourth Amendment.
“Term Loans” means the term loans made by the Term Lenders to the Borrower pursuant
to Section 2.01 or an Incremental Term Agreement, including, for the avoidance of doubt, any “2023
Incremental Term Loans” and “2023 Refinancing Term Loans” as defined in, and issued under, the First
Amendment and, any “2024 Refinancing Term Loans” as defined in, and issued under, the Second
Amendment and any “2026 Refinancing Term Loans” as defined in, and issued under, the Fourth
Amendment.
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“Term SOFR” means,
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference
Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term
SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first
day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided,
however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day
the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR
Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has
not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the
Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which
such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long
as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S.
Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to an ABR Loan on any day, the Term SOFR
Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination
Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is
published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City
time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable
tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with
respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR
Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S.
Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was
published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities
Business Day is not more than three (3) U.S. Government Securities Business Days prior to such ABR
SOFR Determination Day.
If Term SOFR determined as provided above shall ever be less than 0.00%, then Term
SOFR shall be deemed to be 0.00%.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited
(CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative
Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Transactions” means the execution, delivery and performance by the Loan Parties of
this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions and
the use of the proceeds thereof.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Term SOFR or the Alternate Base Rate.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State
of New York or any other state the laws of which are required to be applied in connection with the issue
of perfection of security interests.
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“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement
excluding the related Benchmark Replacement Adjustment.
“Unrestricted Subsidiary” means (i) any Subsidiary of the Borrower which at the time of
determination is an Unrestricted Subsidiary (as designated by the Borrower, as provided below) and (ii)
any Subsidiary of an Unrestricted Subsidiary.
The Borrower may (x) designate any Restricted Subsidiary of the Borrower (including
any existing Restricted Subsidiary and any newly acquired or newly formed Restricted Subsidiary) to be
an Unrestricted Subsidiary unless such Restricted Subsidiary or any of its Subsidiaries owns any Equity
Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Borrower or any
Restricted Subsidiary of the Borrower (other than any Subsidiary of the Restricted Subsidiary to be so
designated or an Unrestricted Subsidiary) and (y) re-designate an Unrestricted Subsidiary as a Restricted
Subsidiary, in each case by providing written notice of such designation to the Administrative Agent
certifying to the satisfaction of the terms contained in this paragraph; provided that after giving effect to
such designation or re-designation, (i) the Borrower is in pro forma compliance with Section 6.11, (ii) no
Default or Event of Default has occurred and is continuing or would result therefrom and (iii) no
Subsidiary may be an Unrestricted Subsidiary under this Agreement unless it is an “Unrestricted
Subsidiary” under the Revolving Credit Agreement. For the avoidance of doubt, (1) any designation of a
Restricted Subsidiary as an Unrestricted Subsidiary will be deemed to be an Investment in such
Unrestricted Subsidiary in an amount equal to the fair market value of such Unrestricted Subsidiary’s
assets at the time of designation and (2) any re-designation of an Unrestricted Subsidiary as a Restricted
Subsidiary shall constitute the incurrence at the time of re-designation of any Indebtedness or Liens of
such re-designated Restricted Subsidiary existing at such time.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b)
a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends
that the fixed income departments of its members be closed for the entire day for purposes of trading in
United States government securities.
“U.S. Person” means a “United States person” within the meaning of
Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in
Section 2.17(f)(ii)(B)(3).
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under
the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential
Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from
time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain
credit institutions and investment firms, and certain affiliates of such credit institutions or investment
firms.
“UK Resolution Authority” means the Bank of England or any other public
administrative authority having responsibility for the resolution of any UK Financial Institution.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i)
the amount of each then remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (ii) the number of years
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(calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment; by (b) the then outstanding principal amount of such Indebtedness.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of
Title IV of ERISA.
“Withholding Agent” means the Administrative Agent and the Loan Parties.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time
under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,
any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce,
modify or change the form of a liability of any UK Financial Institution or any contract or instrument
under which that liability arises, to convert all or part of that liability into shares, securities or obligations
of that person or any other person, to provide that any such contract or instrument is to have effect as if a
right had been exercised under it or to suspend any obligation in respect of that liability or any of the
powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., an “Initial Term Loan”) or by Type
(e.g., a “SOFR Loan”) or by Class and Type (e.g., a “SOFR Initial Term Loan”). Borrowings also may
be classified and referred to by Class (e.g., an “Initial Term Borrowing”) or by Type (e.g., a “SOFR
Borrowing”) or by Class and Type (e.g., a “SOFR Initial Term Borrowing”).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word
“will” shall be construed to have the same meaning and effect as the word “shall”. The word “law” shall
be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings
and interpretations thereunder having the force of law or with which affected Persons customarily
comply), and all judgments, orders and decrees, of all Governmental Authorities. Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other document as from time to
time amended, restated, supplemented or otherwise modified (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein), (b) any definition of or
reference to any statute, rule or regulation shall be construed as referring thereto as from time to time
amended, supplemented or otherwise modified (including by succession of comparable successor laws),
(c) any reference herein to any Person shall be construed to include such Person’s successors and assigns
(subject to any restrictions on assignment set forth herein) and, in the case of any Governmental
Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof,
(d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (f) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
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SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as
otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, (i) if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Borrower that the Required
Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith and (ii) notwithstanding anything to the contrary contained in Section 1.04(a), only
those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that
would constitute capital leases in conformity with GAAP prior to the effectiveness of Accounting
Standard Codification 842 (or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect (and related interpretations)) shall be considered capital leases,
and all calculations and deliverables under this Agreement or any other Loan Document shall be made or
delivered, as applicable, in accordance therewith. Notwithstanding any other provision contained herein,
all terms of an accounting or financial nature used herein shall be construed, and all computations of
amounts and ratios referred to herein shall be made, without giving effect to (x) any accumulated other
comprehensive income or loss, (y) any election under Accounting Standards Codification 825 (or any
other Accounting Standards Codification or Financial Accounting Standard having a similar result or
effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as
defined therein or (z) any treatment of Indebtedness in respect of convertible debt instruments under
Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial
Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or
bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full
stated principal amount thereof.
(b) All pro forma computations required to be made hereunder giving effect to any
acquisition or Disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction
shall in each case be calculated giving pro forma effect thereto (and, in the case of any pro forma
computation made hereunder to determine whether such acquisition or Disposition, or issuance,
incurrence or assumption of Indebtedness, or other transaction is permitted to be consummated
hereunder, to any other such transaction consummated since the first day of the period covered by any
component of such pro forma computation and on or prior to the date of such computation) as if such
transaction had occurred on the first day of the period of four consecutive fiscal quarters ending with the
most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section
5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, ending with the last fiscal
quarter included in the financial statements referred to in Section 3.04(a)), and, to the extent applicable,
to the historical earnings and cash flows associated with the assets acquired or disposed of (but without
giving effect to any synergies or cost savings) and any related incurrence or reduction of Indebtedness,
all in accordance with Article 11 of Regulation S-X under the Securities Act of 1933. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Swap Agreement applicable to such Indebtedness).
SECTION 1.05. Status of Obligations. In the event that the Borrower or any other
Loan Party shall at any time issue or have outstanding Subordinated Indebtedness, the Borrower shall
take or cause such other Loan Party to take all such actions as shall be reasonably necessary to cause the
Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated
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Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any payment
blockage or other remedies available or potentially available to holders of senior indebtedness under the
terms of such Subordinated Indebtedness. Without limiting the foregoing, the Obligations are hereby
designated as “senior indebtedness” and as “designated senior indebtedness” and words of similar import
under and in respect of any indenture or other agreement or instrument under which such other
Subordinated Indebtedness is outstanding and are further given all such other designations as shall be
required under the terms of any such Subordinated Indebtedness in order that the Lenders may have and
exercise any payment blockage or other remedies available or potentially available to holders of senior
indebtedness under the terms of such Subordinated Indebtedness.
SECTION 1.06. Interest Rates. The Administrative Agent does not warrant or accept
responsibility for, and shall not have any liability with respect to (a) the continuation of, administration
of, submission of, calculation of or any other matter related to the Alternate Base Rate, the Term SOFR
Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition
thereof, or any alternative, successor or replacement rate thereto (including any Benchmark
Replacement), including whether the composition or characteristics of any such alternative, successor or
replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value
or economic equivalence of, or have the same volume or liquidity as, Alternate Base Rate, the Term
SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability,
or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent
and its affiliates or other related entities may engage in transactions that affect the calculation of
Alternate Base Rate, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or
replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each
case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or
services in its reasonable discretion to ascertain Alternate Base Rate, the Term SOFR Reference Rate,
Term SOFR, or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall
have no liability to the Borrower, any Lender or any other person or entity for damages of any kind,
including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or
expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or
calculation of any such rate (or component thereof) provided by any such information source or service.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein,
each Lender with an Initial Term Commitment (severally and not jointly) agrees to make Initial Term
Loans to the Borrower in Dollars, on the Effective Date, in an amount equal to such Lender’s Initial
Term Commitment by making immediately available funds available to the Administrative Agent’s
designated account, not later than the time specified by the Administrative Agent. Amounts repaid or
prepaid in respect of the Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance
with their Applicable Percentages. The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as
required. The Term Loans shall amortize as set forth in Section 2.10.
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(b) Subject to Section 2.14, each Term Loan Borrowing shall be comprised entirely
of ABR Loans or SOFR Loans as the Borrower may request in accordance herewith. Each Lender at its
option may make any SOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17
shall apply to such Affiliate to the same extent as to, with no greater benefit to, such Lender); provided
that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) Borrowings of more than one Type and Class may be outstanding at the same
time; provided that there shall not at any time be more than a total of three (3) SOFR Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not
be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower
shall notify the Administrative Agent of such request by submitting a Borrowing Request (a) in the case
of a SOFR Borrowing, not later than 1:00 p.m., New York City time, three (3) U.S. Government
Securities Business Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 1:00 p.m., New York City time, on the date of the proposed Borrowing. Each
such Borrowing Request shall be irrevocable and shall be signed by a Responsible Officer of the
Borrower. Each such telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate principal amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a SOFR
Borrowing;
(iv) in the case of a SOFR Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term “Interest
Period”; and
(v) the location and number of the Borrower’s account to which funds are to
be disbursed.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested SOFR Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall
advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of
the requested Borrowing.
SECTION 2.04. Intentionally Omitted.
SECTION 2.05. Intentionally Omitted.
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SECTION 2.06. Intentionally Omitted.
SECTION 2.07. Funding of Borrowings. (a) (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, (or, in the case of ABR Loans in respect of which notice of such Borrowing shall have
been received after 10:00 a.m., New York City Time, on the date of such requested Borrowing, 3:00
p.m.) New York City time, to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders in an amount equal to such Lender’s Applicable Percentage. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts
so received, in the aforesaid account of the Administrative Agent to an account designated by the
Borrower.
(b) (b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.
SECTION 2.08. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a SOFR Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a SOFR
Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and
the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such Interest Election Request shall be irrevocable and
shall be signed by a Responsible Officer of the Borrower. Notwithstanding any contrary provision
herein, this Section shall not be construed to permit the Borrower to (i) elect an Interest Period for SOFR
Loans that does not comply with Section 2.02(d) or (ii) convert any Borrowing to a Borrowing of a Type
not available under the Class of Commitments pursuant to which such Borrowing was made.
(c) Each Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the portions thereof
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to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a SOFR
Borrowing; and
(iv) if the resulting Borrowing is a SOFR Borrowing, the Interest Period to
be applicable thereto after giving effect to such election, which Interest Period shall be a period
contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a SOFR Borrowing but does not specify an Interest Period,
then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to
a SOFR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing
is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an
ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred
and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a SOFR Borrowing and (ii) unless repaid, each SOFR Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09. Termination of Commitments. The Initial Term Commitments shall
terminate upon the funding of the Initial Term Loans on the Effective Date, the First Amendment
Effective Date, or the Second Amendment Effective Date or the Fourth Amendment Effective Date, as
applicable.
SECTION 2.10. Repayment and Amortization of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to repay to the Administrative Agent for the account of each
Initial Term Lender, on the last day of the first fiscal quarter ending after the First Amendment Effective
Date and on the last Business Day of each March, June, September and December thereafter prior to the
Maturity Date, Initial Term Loans in an amount equal to 0.25% of the aggregate principal amount of the
Initial Term Loans actually funded on the First Amendment Effective Date. To the extent not previously
repaid, all unpaid Loans shall be paid in full in Dollars by the Borrower on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from
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the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein absent manifest error; provided that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in
a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note
and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented
by one or more promissory notes in such form.
SECTION 2.11. Prepayment of Loans.
(a) Optional. (i) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with the
provisions of this Section 2.11. The Borrower shall notify the Administrative Agent by telephone
(confirmed by electronic mail) of any prepayment hereunder (i) in the case of prepayment of a SOFR
Borrowing, not later than 1:00 p.m., New York City time, three (3) U.S. Government Securities Business
Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than
1:00 p.m., New York City time, one (1) Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that a notice of prepayment delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit facilities or other transactions
specified therein, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. Each
prepayment of an Initial Term Loan Borrowing shall be applied ratably to the Initial Term Loans
included in the prepaid Initial Term Loan Borrowing and shall be applied to the remaining amortization
payments under Section 2.10(a) in such order of application as directed by the Borrower (and, absent any
such direction, shall be applied to the remaining amortization payments under Section 2.10(a) in the
direct order of maturity thereof). Prepayments shall be accompanied by (i) accrued interest to the extent
required by Section 2.13 and (ii) break funding payments pursuant to Section 2.16.
(ii) In the event that, on or prior to the date that is 6 months after the
SecondFourth Amendment Effective Date, the Borrower (x) prepays, refinances, substitutes or
replaces any Loans pursuant to this Section 2.11(a) or Section 2.11(b)(iii) with the proceeds of
any new or replacement tranche of term loans that have an All-In Yield that is less than the All-In
Yield of such Loans, (y) effects any amendment, amendment and restatement or other
modification of this Agreement which reduces the All-In Yield of the Loans or (z) a Lender must
assign its Loans pursuant to Section 9.02(d) as a result of its failure to consent to an amendment,
amendment and restatement or other modification of this Agreement the primary purpose of
which is to reduce the All-In Yield of the Loans (other than, in the case of each of clauses (x), (y)
and (z), in connection with a Change in Control or a transformative acquisition referred to in the
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last sentence of this paragraph), the Borrower shall pay to the Administrative Agent, for the
ratable account of each of the applicable Lenders, (A) in the case of clauses (x) and (z), a
prepayment premium of 1.00% of the aggregate principal amount of the Loans so prepaid or
assigned, applicable, and (B) in the case of clause (y), a fee equal to 1.00% of the aggregate
principal amount of the applicable Loans for which the All-In Yield has been reduced pursuant to
such amendment. Such amounts shall be due and payable on the date of such prepayment or the
effective date of such amendment, as the case may be. For purposes of this Section 2.11(a)(ii), a
“transformative acquisition” is any acquisition (together with any related transaction, including
incurrence of indebtedness to finance such acquisition) by the Borrower or any Restricted
Subsidiary that (i) is not permitted by the terms of the Loan Documents immediately prior to the
consummation of such acquisition or (ii) if permitted by the terms of the Loan Documents
immediately prior to the consummation of such acquisition, after which the Borrower and its
Restricted Subsidiaries would not have adequate flexibility under the Loan Documents for the
continuation and/or expansion of their combined operations following such consummation, as
determined by the Borrower in good faith.
(b) Mandatory. (i) Excess Cash Flow. Within five Business Days after financial
statements have been or are required to be delivered pursuant to Section 5.01(a) and the related
certificate of a Financial Officer has been or is required to be delivered pursuant to Section 5.01(c) for
the relevant Excess Cash Flow Period, the Borrower shall prepay an aggregate principal amount of Loans
equal to the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period
covered by such financial statements minus (B) the sum of all voluntary prepayments of the Initial Term
Loans during such fiscal year pursuant to Section 2.11(a)(i), to the extent such prepayments are funded
with Internally Generated Cash Flow.
(ii) Dispositions. If Borrower or any of its Restricted Subsidiaries
receive Net Proceeds of any Prepayment Disposition, Borrower shall prepay on or prior to the
date which is five Business Days after the date of receipt of such Net Proceeds, an aggregate
principal amount of Loans equal to 100% of all Net Proceeds received; provided, that with
respect to any Net Proceeds received with respect to any Prepayment Disposition, at the option of
the Borrower and so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may reinvest all or any portion of such Net Proceeds in acquisitions of,
or investments in, assets useful for its business within (x) 12 months following receipt of such
Net Proceeds or (y) if Borrower enters into a legally binding commitment to reinvest such Net
Proceeds within 12 months following receipt thereof, within 180 days after entry into such
commitment, and provided, further, that if any Net Proceeds are no longer intended to be or
cannot be so reinvested at any time after delivery of a notice of reinvestment election, or have not
been reinvested within the time period set forth above, an amount equal to any such Net Proceeds
shall be applied as set forth in the first sentence of this Section 2.11(b)(ii) within five Business
Days after the Borrower reasonably determines that such Net Proceeds are no longer intended to
be or cannot be so reinvested to the prepayment of the Loans as set forth in this Section 2.11.
(iii) Proceeds of Indebtedness. If the Borrower or any Restricted Subsidiary
incurs or issues any Indebtedness (A) not expressly permitted to be incurred or issued pursuant to
Section 6.01 or (B) incurred pursuant to a Refinancing Amendment, the Borrower shall prepay
an aggregate principal amount of Loans equal to 100% of all Net Proceeds received therefrom on
or prior to the date which is five Business Days after the receipt of such Net Proceeds.
(iv) Proceeds of Equity. If the Borrower or any Restricted Subsidiary issues
any Equity Interests or equity-linked securities (including, for the avoidance of doubt, a
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contribution of cash as common equity to the capital of the Borrower by the Parent), the
Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Proceeds
received therefrom on or prior to the date which is five Business Days after the receipt of such
Net Proceeds.
(c) In the case of any prepayment pursuant to Section 2.11(b)(i), (ii) or (iv) above, if
at the time that such prepayment would be required, the Borrower is required to offer to prepay or
repurchase any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking
pari passu with the Lien securing the Initial Term Loans pursuant to the terms of the documentation
governing such Indebtedness (such Indebtedness, the “Other Applicable First Lien Indebtedness”), then
the Borrower, at its election, may apply a portion of the amount otherwise subject to such prepayment
under Section 2.11(b) on a pro rata basis (determined on the basis of the aggregate outstanding principal
amount of the Loans and Other Applicable First Lien Indebtedness at such time) to the prepayment of
such Other Applicable First Lien Indebtedness; provided that (x) the portion so allocated to the Other
Applicable First Lien Indebtedness shall not exceed the amount required to be so applied pursuant to the
terms thereof, and any remaining amount shall be applied to prepay the Loans in accordance with the
terms hereof and (y) to the extent the holders thereof decline to have such Other Applicable First Lien
Indebtedness prepaid or repurchased, any amount not so applied to prepay or repurchase such Other
Applicable First Lien Indebtedness shall be applied to repay the Loans in accordance with the terms
hereof.
(d) All amounts prepaid pursuant to Section 2.11(b) shall be (i) applied ratably to
the Term Loans; provided that with respect to such amounts applied to the Initial Term Loans, such
amounts shall be applied ratably to the remaining amortization payments under Section 2.10(a) and (ii)
shall be accompanied by (A) accrued interest to the extent required by Section 2.13 and (B) break
funding payments pursuant to Section 2.16.
(e) Notwithstanding the foregoing, each Lender shall have the right to reject its
applicable percentage of any mandatory prepayment of the Loans pursuant to Section 2.10(b) by giving at
least one Business Day’s prior written notice thereof to the Administrative Agent, in which case the
amounts so rejected may be retained by the Borrower.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each
prepayment required under Section 2.11(b), (i) a certificate signed by a Financial Officer of the Borrower
setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) not later than
1:00 p.m. at least three (3) Business Days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(b) Fees paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each SOFR Borrowing shall bear interest at the Term
SOFR for the Interest Period in effect for such Borrowing plus the Applicable Rate.
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(c) Notwithstanding the foregoing clauses (a) and (b), if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after
as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan,
2% per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2% per annum plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section. Notwithstanding the foregoing, during the occurrence and
continuance of an Event of Default, the Administrative Agent or the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 9.02 requiring the consent of “each Lender directly affected
thereby” for reductions in interest rates), declare that (i) all Loans shall bear interest at 2% per annum
plus the rate otherwise applicable to such Loans as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount outstanding hereunder, such amount shall accrue at 2% per annum
plus the rate applicable to such fee or other obligation as provided hereunder.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest
Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any SOFR Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or
Term SOFR Reference Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
(f) In connection with the use or administration of Term SOFR, the Administrative
Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything
to the contrary herein or in any other Loan Document, any amendments implementing such Conforming
Changes will become effective without any further action or consent of any other party to this Agreement
or any other Loan Document. The Administrative Agent will promptly notify the Borrower and the
Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of
Term SOFR.
SECTION 2.14. Alternate Rate of Interest.
(a) Subject to Section 2.23, on or prior to the first day of any Interest Period for any
SOFR Loan:
(i) the Administrative Agent determines (which determination shall be
conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant
to the definition thereof; or
(ii) the Required Lenders determine that for any reason in connection with
any request for a SOFR Loan or a conversion thereto or a continuation thereof that Term SOFR
for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and
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fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required
Lenders have provided notice of such determination to the Administrative Agent;
the Administrative Agent will promptly so notify the Borrower and each Lender.
Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make
SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR
Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until
the Administrative Agent (with respect to clause (ii), at the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a
borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or
affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such
request into a request for a Borrowing of or conversion to ABR Loans in the amount specified therein
and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans at
the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued
interest on the amount so converted, together with any additional amounts required pursuant to Section
2.16. Subject to Section 2.23, if the Administrative Agent determines (which determination shall be
conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the
definition thereof on any given day, the interest rate on ABR Loans shall be determined by the
Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the
Administrative Agent revokes such determination.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve (including pursuant to
regulations issued from time to time by the Federal Reserve Board for determining the maximum
reserve requirement (including any emergency, special, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency
liabilities” in Regulation D)), special deposit, liquidity or similar requirement (including any
compulsory loan requirement, insurance charge or other assessment) against assets of, deposits
with or for the account of, or credit extended by, any Lender;
(ii) impose on any Lender or the London interbank market any other
condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such
Lender; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes,
(B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and
(C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or
other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient
of making, continuing, converting into or maintaining any Loan or of maintaining its obligation to make
any such Loan or to reduce the amount of any sum received or receivable by such Lender or such other
Recipient hereunder, whether of principal, interest or otherwise, then the Borrower will pay to such
Lender or such other Recipient, as the case may be, such additional amount or amounts as will
compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital or liquidity
requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on
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the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans
made by such Lender, to a level below that which such Lender or such Lender’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from
time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within fifteen (15) days
after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to
claim compensation therefor; provided further that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any SOFR Loan other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (b) the
conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11 and is
revoked in accordance therewith) or (d) the assignment of any SOFR Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. Such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would
have accrued on the principal amount of such Loan had such event not occurred, at the Term SOFR that
would have been applicable to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate which such Lender would bid
were it to bid, at the commencement of such period, for deposits in Dollars of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as
due on any such certificate within fifteen (15) days after receipt thereof.
SECTION 2.17. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Loan Party under any Loan Document shall be made without deduction or withholding
for any Taxes, except as required by applicable law. If any applicable law (as determined in the good
faith discretion of a Withholding Agent) requires the deduction or withholding of any Tax from any such
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payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such
deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then
the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction
or withholding has been made (including such deductions and withholdings applicable to additional sums
payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would
have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the
relevant Governmental Authority in accordance with applicable law, or at the option of the
Administrative Agent timely reimburse it for, Other Taxes.
(c) Evidence of Payments. As soon as practicable after any payment of Taxes by
any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(d) Indemnification by the Loan Parties. The Loan Parties shall indemnify each
Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable
or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a
copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the
Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to
such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative
Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so),
(ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c)
relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such
Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any Lender by the Administrative
Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan
Document or otherwise payable by the Administrative Agent to the Lender from any other source against
any amount due to the Administrative Agent under this paragraph (e).
(f) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed documentation
reasonably requested by the Borrower or the Administrative Agent as will permit such payments
to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if
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reasonably requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other than such documentation set
forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the
Borrower is a U.S. Person:
(A) any Lender that is a U.S. Person shall deliver to the Borrower
and the Administrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), an executed copy of IRS
Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding
tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of copies as
shall be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), whichever of the
following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of
an income tax treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, an executed copy of IRS Form
W-8BEN-E or IRS Form W-8BEN establishing an exemption from, or reduction
of, U.S. federal withholding Tax pursuant to the “interest” article of such tax
treaty and (y) with respect to any other applicable payments under any Loan
Document, IRS Form W-8BEN-E or IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the
“business profits” or “other income” article of such tax treaty;
(2) in the case of a Foreign Lender claiming that its
extension of credit will generate U.S. effectively connected income, an executed
copy of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit C-1 to the effect that such Foreign
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code,
a “10 percent shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y)
an executed copy of IRS Form W-8BEN-E or IRS Form W-8BEN; or
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(4) to the extent a Foreign Lender is not the beneficial
owner, an executed copy of IRS Form W-8IMY, accompanied by IRS Form
W-8ECI, IRS Form W-8BEN-E or IRS Form W-8BEN, a U.S. Tax Compliance
Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form
W-9, and/or other certification documents from each beneficial owner, as
applicable; provided that if the Foreign Lender is a partnership and one or more
direct or indirect partners of such Foreign Lender are claiming the portfolio
interest exemption, such Foreign Lender may provide a U.S. Tax Compliance
Certificate substantially in the form of Exhibit C-4 on behalf of each such direct
and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of copies as
shall be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed copies of any
other form prescribed by applicable law as a basis for claiming exemption from or a
reduction in U.S. federal withholding Tax, duly completed, together with such
supplementary documentation as may be prescribed by applicable law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction
required to be made;
(D) if a payment made to a Lender under any Loan Document would
be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to
fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Borrower and the Administrative Agent at the time or times prescribed by
law and at such time or times reasonably requested by the Borrower or the
Administrative Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as may be necessary
for the Borrower and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), “FATCA” shall include any amendments made to
FATCA after the date of this Agreement; and
(E) the Administrative Agent, and any successor or supplemental
Administrative Agent, shall deliver to the Borrower (in such number of copies as shall be
requested by the recipient) on or prior to the date on which the Administrative Agent
becomes the administrative agent hereunder or under any other Loan Document (and
from time to time thereafter upon the reasonable request of the Borrower) executed
copies of either (i) IRS Form W-9 (or any successor form) or (ii), if legally entitled to do
so, a U.S. branch withholding certificate on IRS Form W-8IMY (or any successor form)
evidencing its agreement with the Borrower to be treated as a U.S. person (with respect
to amounts received on account of any Lender) and IRS Form W-8ECI (with respect to
amounts received on its own account), with the effect that, in either case, the Borrower
will be entitled to make payments hereunder to the Administrative Agent without
withholding or deduction on account of U.S. federal withholding Tax.
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Each Lender agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified
pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section
2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of
indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund),
net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the
amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) in the event that such indemnified party is required to repay such
refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g),
in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant
to this paragraph (g) the payment of which would place the indemnified party in a less favorable net
after-Tax position than the indemnified party would have been in if the Tax subject to indemnification
and giving rise to such refund had not been deducted, withheld or otherwise imposed and the
indemnification payments or additional amounts with respect to such Tax had never been paid. This
paragraph shall not be construed to require any indemnified party to make available its Tax returns (or
any other information relating to its Taxes that it deems confidential) to the indemnifying party or any
other Person.
(h) Survival. Each party’s obligations under this Section 2.17 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
(i) Defined Terms. For purposes of this Section 2.17, the term “applicable law”
includes FATCA.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment or prepayment required to be made by it
hereunder (whether of principal, interest or fees, or of amounts payable under Section 2.15, 2.16 or 2.17,
or otherwise) prior to 2:00 p.m., New York City time on the date when due or the date fixed for any
prepayment hereunder, in immediately available funds, without set-off, recoupment or counterclaim.
Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent at its offices at 66 Hudson
Boulevard East, 4th floor, New York, New York 10001, except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such
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funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal then due to such parties.
(c) During the continuance of an Event of Default, at the election of the
Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses
(including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and
other sums payable under the Loan Documents, may be deducted from any deposit account of the
Borrower maintained with the Administrative Agent; provided, that in the case of reimbursement for fees
and expenses, the Administrative Agent shall have previously provided the Borrower with an invoice
setting forth any such amounts as provided for under Section 9.03. The Borrower hereby irrevocably
authorizes, during the continuance of an Event of Default, the Administrative Agent to charge any
deposit account of the Borrower maintained with the Administrative Agent for each payment of
principal, interest and fees as it becomes due hereunder or any other amount due under the Loan
Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto is recovered,
such participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off
and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it pursuant
to 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the
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Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to
satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid
and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any
future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and
(ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) (a) If any
Lender requests compensation under Section 2.15, or the Borrower is required to pay any Indemnified
Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.
(b) (b) If (i) any Lender requests compensation under Section 2.15, (ii) the
Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17 or (iii) any Lender
becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other
than its existing rights to payments pursuant to Sections 2.15 or 2.17) and obligations under the Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a
reduction in such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each
party hereto agrees that (i) an assignment required pursuant to this paragraph may be effected pursuant to
an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee
(or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference
pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are
participants), and (ii) the Lender required to make such assignment need not be a party thereto in order
for such assignment to be effective and shall be deemed to have consented to and be bound by the terms
thereof; provided that, following the effectiveness of any such assignment, the other parties to such
assignment agree to execute and deliver such documents necessary to evidence such assignment as
reasonably requested by the applicable Lender, provided that any such documents shall be without
recourse to or warranty by the parties thereto.
SECTION 2.20. Incremental Term Loans.
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(a) The Borrower may from time to time request additional tranches of term loans,
or to increase the principal amount of the Loans in minimum increments of $20,000,000 (such additional
tranche or increase in Loans, an “Incremental Term Loan”); provided that the aggregate principal amount
of Incremental Term Loans that may be incurred at any time shall not exceed the Incremental Cap at such
time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders
(each Lender so agreeing to an increase in its Loans, an “Increasing Lender”), or by one or more new
banks, financial institutions or other entities (each such new bank, financial institution or other entity, an
“Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which
agree to participate in such Incremental Term Loans. Except as set forth above, no consent of any
Lender (other than the Lenders participating in such Incremental Term Loan) shall be required for the
incurrence of any Incremental Term Loans pursuant to this Section 2.20. Incremental Term Loans
created pursuant to this Section 2.20 shall become effective on the date agreed by the Borrower, the
Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the
Administrative Agent shall notify each Lender thereof.
(b) No Incremental Term Loan may be incurred unless the Indebtedness Incurrence
Conditions with respect thereto shall be satisfied.
(c) The Incremental Term Loans may be made hereunder pursuant to an amendment
or restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan
Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each
Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental
Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the
Administrative Agent, to effect the provisions of this Section 2.20, including corresponding adjustments
to the scheduled amortization payments and pursuant to clause (f) of the definition of “Indebtedness
Incurrence Conditions” to ensure fungibility of the Initial Term Loans with any Incremental Term Loans,
to the extent applicable. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed
to be, a commitment on the part of any Lender to provide Incremental Term Loans at any time. In
connection with any Incremental Term Loans pursuant to this Section 2.20, any Augmenting Lender
becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent
may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of
a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name,
address, tax identification number and/or such other information as shall be necessary for the
Administrative Agent to comply with “know your customer” and anti-money laundering rules and
regulations, including without limitation, the Patriot Act.
(d) To the extent of any inconsistency, the terms of this Section 2.20 shall supersede
any provision in Section 2.18 or 9.02.
SECTION 2.21. Refinancing Facilities.
(a) The Borrower may, by written notice to the Administrative Agent from time to
time, request Refinancing Loans (the “Refinancing Loans”) to refinance all or a portion of any existing
Loans (the “Refinanced Loans”) in an aggregate principal amount not to exceed the aggregate principal
amount of the Refinanced Loans plus any accrued interest, fees, costs and expenses related thereto
(including any original issue discount or upfront fees). Such notice shall set forth (i) the amount of the
Refinancing Loan (which shall be in a minimum amount of $5,000,000) and (ii) the date on which the
applicable Refinancing Loan is to be made available (which shall not be less than ten (10) Business Days
nor more than sixty (60) days after the date of such notice (or such longer or shorter periods as the
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Administrative Agent shall agree)). The Borrower may seek Refinancing Loans from existing Lenders
(each of which shall be entitled to agree or decline to participate in its sole discretion) or from one or
more new banks, financial institutions or other entities (other than any Ineligible Institution).
(b) It shall be a condition precedent to the incurrence of any Refinancing Loans that
(i) no Default or Event of Default shall have occurred and be continuing immediately prior to or
immediately after giving effect to the incurrence of the Refinancing Loans, (ii) the terms of the
Refinancing Loans shall comply with this Section 2.21 and (iii) substantially concurrently with the
incurrence of any Refinancing Loans, 100% of the proceeds thereof shall be applied to repay the
Refinanced Loans (including accrued interest, fees and premiums (if any) payable in connection
therewith).
(c) The terms of any Refinancing Loans shall be determined by the Borrower and
the Persons providing the Refinancing Loans (each, a “Refinancing Lender”) and set forth in a
Refinancing Amendment; provided that (i) the final maturity date of any Refinancing Loans shall be no
earlier than the Maturity Date, (ii) the Weighted Average Life to Maturity of the Refinancing Loans shall
be no shorter than the remaining Weighted Average Life to Maturity of any then-existing class of Loans,
(iii) the Refinancing Loans will rank pari passu in right of payment and of security with the Loans, (iv)
none of the borrower and the guarantors of the Refinancing Loans shall be a Person that is not a Loan
Party and the Refinancing Loans shall not be secured by assets that do not constitute Collateral, (v) the
interest rate margin, rate floors, fees, original issue discount and premiums applicable to the Refinancing
Loans shall be determined by the Borrower and the applicable Refinancing Lenders, (vi) the Refinancing
Loans may share ratably or less than ratably (but not more than ratably) in any mandatory prepayments
hereunder and (vii) to the extent the terms of the Refinancing Loans are inconsistent with the terms set
forth herein (except as set forth in clause (i) through (vi) above), such terms shall be reasonably
satisfactory to the Administrative Agent.
(d) In connection with any Refinancing Loans, the Borrower, the Administrative
Agent and each applicable Refinancing Lender shall execute and deliver to the Administrative Agent an
amendment to this Agreement (which may take the form of an amendment and restatement of this
Agreement) (a “Refinancing Amendment”) and such other documentation as the Administrative Agent
shall reasonably specify to evidence such Refinancing Loans. The Administrative Agent shall promptly
notify each Lender as to the effectiveness of each Refinancing Amendment. Any Refinancing
Amendment may, without the consent of any other Lender, effect such amendments to this Agreement
and the other Loan Documents as may be necessary or appropriate (but only to such extent), in the
reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section
2.21, including any amendments necessary to establish the applicable Refinancing Loans as a new class
or tranche of Loans, and such other technical amendments as may be necessary or appropriate in the
reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment
of such new class or tranche, in each case on terms consistent with this Section 2.21.
(e) To the extent of any inconsistency, the terms of this Section 2.21 shall supersede
any provision in Section 2.18 or 9.02.
SECTION 2.22. Defaulting Lenders. Notwithstanding any provision of this
Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions
shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 2.12(a);
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(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 9.02);
provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of
a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of
such Lender or each Lender directly affected thereby;
(c) upon the occurrence and during the continuance of an Event of Default, the
Administrative Agent may, in its sole discretion and in lieu of distributing such amounts to such
Defaulting Lender, apply amounts which would otherwise be payable to a Defaulting Lender to satisfy in
full or in part the Obligations owing to the Administrative Agent and the non-Defaulting Lenders in
accordance with the other provisions of this Agreement with the balance, if any, being applied to satisfy
in full or in part to the Obligations owing to such Defaulting Lender;
(d) neither the provisions of this Section 2.22, nor the provisions of any other
Section of this Agreement relating to a Defaulting Lender, are intended by the parties hereto to constitute
liquidated damages and, subject to the limitations contained in Section 9.03 regarding special, indirect,
consequential and punitive damages, each of the Administrative Agent, each non-Defaulting Lender and
each Loan Party hereby reserves its respective rights to proceed against any Defaulting Lender for any
damages incurred as a result of it becoming a Defaulting Lender hereunder; and
(e) for the avoidance of doubt, the Borrower shall not be liable to any Defaulting
Lender as a result of any action taken by the Administrative Agent in accordance with the terms of this
Section 2.22.
In the event that the Administrative Agent and the Borrower each agrees that a
Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting
Lender, then on such date such Lender shall purchase at par such of the Loans of the other Lenders as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in
accordance with its Applicable Percentage and any amounts required to be on deposit pursuant to
Section 2.22(c) shall be immediately remitted to the Borrower or as otherwise required pursuant to
applicable law, rule or order.
SECTION 2.23. Benchmark Replacement Setting.
(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in
any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative
Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a
Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will
become effective at 5:00 p.m. (New York City time) on the fifth (5
th) Business Day after the
Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so
long as the Administrative Agent has not received, by such time, written notice of objection to such
amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a
Benchmark Replacement pursuant to this Section 2.20(a) will occur prior to the applicable Benchmark
Transition Start Date.
(b) Benchmark Replacement Conforming Changes. In connection with the use,
administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will
have the right to make Conforming Changes from time to time and, notwithstanding anything to the
contrary herein or in any other Loan Document, any amendments implementing such Conforming
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Changes will become effective without any further action or consent of any other party to this Agreement
or any other Loan Document.
(c) Notices; Standards for Decisions and Determinations. The Administrative Agent
will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark
Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use,
administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent
will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to
Section 2.23(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination,
decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or
group of Lenders) pursuant to this Section 2.23, including any determination with respect to a tenor, rate
or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision
to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest
error and may be made in its or their sole discretion and without consent from any other party to this
Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this
Section 2.23.
(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the
contrary herein or in any other Loan Document, at any time (including in connection with the
implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including
the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a
screen or other information service that publishes such rate from time to time as selected by the
Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of
such Benchmark has provided a public statement or publication of information announcing that any tenor
for such Benchmark is not or will not be representative, then the Administrative Agent may modify the
definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or
after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was
removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information
service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to
an announcement that it is not or will not be representative for a Benchmark (including a Benchmark
Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any
similar or analogous definition) for all Benchmark settings at or after such time to reinstate such
previously removed tenor.
(e) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the
commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for
a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have
converted any such request into a request for a Borrowing of or conversion to ABR Loans. During a
Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an
Available Tenor, the component of Alternate Base Rate based upon the then-current Benchmark or such
tenor for such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders on the Effective Date that:
SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry on its business as now
conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required. Schedule 3.01 hereto identifies each
Subsidiary, noting whether such Subsidiary is a Restricted Subsidiary, an Unrestricted Subsidiary or a
Material Domestic Subsidiary, the jurisdiction of its incorporation or organization, as the case may be,
the percentage of issued and outstanding shares of each class of its capital stock or other equity interests
owned by the Borrower and the other Subsidiaries and, if such percentage is not 100% (excluding
directors’ qualifying shares as required by law), a description of each class issued and outstanding. All
of the outstanding shares of capital stock and other equity interests of each Subsidiary are validly issued
and outstanding and fully paid and nonassessable and all such shares and other equity interests indicated
on Schedule 3.01 as owned by the Borrower or another Subsidiary are owned, beneficially and of record,
by the Borrower or any Subsidiary free and clear of all Liens. There are no outstanding commitments or
other obligations of the Borrower or any Subsidiary to issue, and no options, warrants or other rights of
any Person to acquire, any shares of any class of capital stock or other equity interests of the Borrower or
any Subsidiary.
SECTION 3.02. Authorization; Enforceability. The Transactions are within each
Loan Party’s organizational powers and have been duly authorized by all necessary organizational
actions and, if required, actions by equity holders. The Loan Documents to which each Loan Party is a
party have been duly executed and delivered by such Loan Party and constitute a legal, valid and binding
obligation of such Loan Party, enforceable in accordance with its terms, subject to (x) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in a proceeding in equity or
at law and (y) the need for filings and registrations necessary to perfect the Liens on the Collateral, if
any, granted by the Loan Parties in favor of the Secured Parties.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except (i) filings and registrations necessary to perfect the Liens on the Collateral, if any,
granted by the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties
and (ii) such as have been obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or
any of its Restricted Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, material agreement or other material instrument binding upon the
Borrower or any of its Restricted Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Restricted Subsidiaries, and (d) will not result in
the creation or imposition of any Lien on any asset of the Borrower or any of its Restricted Subsidiaries
other than Liens securing the Obligations and the “Obligations” under (and as defined in) the Revolving
Credit Agreement.
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SECTION 3.04. Financial Condition; No Material Adverse Change. (a). (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet and statements of
income, stockholders equity and cash flows as of and for the fiscal year ended September 30, 2018
reported on by Ernst & Young LLP, independent public accountants. Such financial statements present
fairly, in all material respects, the financial position and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with
GAAP.
(b) Since September 30, 2018, there has been no material adverse change in the
business, assets, operations or condition (financial or otherwise) of the Borrower and its Restricted
Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a). (a) Each of the Borrower and its Restricted
Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to
its business, except for minor defects in title that do not interfere in any material respect with its ability to
conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Restricted Subsidiaries owns, or is licensed to use,
all Intellectual Property used or held for use in or necessary for the conduct of their respective business,
and to the knowledge of the Borrower, neither the use thereof by the Borrower and its Restricted
Subsidiaries, nor the conduct of the Borrower’s or any of its Restricted Subsidiaries’ respective business,
infringe upon, misappropriate or violate the rights of any other Person, except for any such
infringements, misappropriations or violations that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation, Environmental and Labor Matters. (a). (a)There are no
actions, suits, proceedings or investigations by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or
any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect or (ii) that involve this Agreement or the Transactions.
(b) Except with respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability or (iii) has received notice of any claim with respect to any
Environmental Liability.
(c) There are no strikes, lockouts or slowdowns against the Borrower or any of its
Restricted Subsidiaries pending or, to their knowledge, threatened that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect. The hours worked by and
payments made to employees of the Borrower and its Restricted Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law relating to
such matters that could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. All material payments due from the Borrower or any of its Restricted Subsidiaries, or
for which any claim may be made against the Borrower or any of its Restricted Subsidiaries, on account
of wages and employee health and welfare insurance and other benefits, have been paid or accrued as
liabilities on the books of the Borrower or such Restricted Subsidiary. The consummation of the
Transactions will not give rise to any right of termination or right of renegotiation on the part of any
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union under any collective bargaining agreement under which the Borrower or any of its Restricted
Subsidiaries is bound.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and
its Restricted Subsidiaries is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08. Investment Company Status. Neither the Borrower nor any
Subsidiary Guarantor is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.
SECTION 3.09. Taxes. Each of the Borrower and its Restricted Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such Restricted Subsidiary, as
applicable, has set aside on its books adequate reserves to the extent required by GAAP or (b) to the
extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event, or similar event with respect to a Foreign
Plan, has occurred or is reasonably expected to occur that, when taken together with all other such
ERISA Events or similar events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Restricted
Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the Information Memorandum nor
any of the other reports, financial statements, certificates or other written information furnished by or on
behalf of the Borrower or any Restricted Subsidiary to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented
by other information so furnished) when taken as a whole contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, the foregoing is hereby qualified to the
extent of any projections or other “forward looking statements”, which include statements that are
predictive in nature, depend upon or refer to future events or conditions, and usually include words such
as “expects”, “anticipates”, “intends”, “plans”, “believes”, “projects”, “estimates”, or similar
expressions; and provided, further, that any statements concerning future financial performance, ongoing
business strategies or prospects or possible future actions are also future looking statements; it being
expressly understood and agreed that (i) forward looking statements are based on current expectations
and projections about future events and are subject to risks, uncertainties and the accuracy of
assumptions concerning the Borrower and its Restricted Subsidiaries, the performance of the industries in
which they do business and economic and market factors, among other things, and (ii) such forward
looking statements are not guarantees of future performance.
SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan
have been used or will be used, whether directly or indirectly, for any purpose that entails a violation of
any of the Regulations of the Board, including Regulations T, U and X.
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SECTION 3.13. Liens. There are no Liens on any of the real or personal properties
of the Borrower or any Restricted Subsidiary except for Liens permitted by Section 6.02.
SECTION 3.14. No Default. No Default or Event of Default has occurred and is
continuing.
SECTION 3.15. No Burdensome Restrictions. The Borrower is not subject to any
Burdensome Restrictions except Burdensome Restrictions permitted under Section 6.08.
SECTION 3.16. Solvency.
(a) Immediately after giving effect to any Borrowing, the Borrower and its
Restricted Subsidiaries, taken as a whole, are and will be Solvent as of the date of such Borrowing.
(b) The Borrower does not intend to, nor does it intend to permit any of its
Restricted Subsidiaries to, and the Borrower does not believe that it or any of its Restricted Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing of and
amounts of cash to be received by it or any such Restricted Subsidiary and the timing of the amounts of
cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Restricted
Subsidiary.
SECTION 3.17. Anti-Corruption Laws and Sanctions. The Borrower has
implemented and maintains in effect policies and procedures designed to ensure compliance by the
Borrower, its Subsidiaries and their respective directors, officers, employees and agents with
Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective
officers and employees and to the knowledge of the Borrower, their respective directors and agents, are
in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of
(a) the Borrower, any Subsidiary or, to the knowledge of the Borrower or such Subsidiary, any of their
respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the
Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit
facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other Transactions
will violate any Anti-Corruption Law or applicable Sanctions.
SECTION 3.18. EEA Financial Institutions. The Borrower is not an EEA Financial
Institution.
SECTION 3.19. Plan Assets; Prohibited Transactions. None of the Borrower or any
of its Restricted Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan
Asset Regulations).
SECTION 3.20. Collateral Documents. (a) Subject to Sections 5.09 and 5.11 and the
other limitations, exceptions and filing requirements otherwise set forth in this Agreement and the other
Loan Documents, the Collateral Documents are effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the
Collateral described therein to the extent required thereby, subject to Liens permitted under the Loan
Documents.
(b) Subject to Sections 5.09 and 5.11, upon recording thereof in the appropriate
recording office, each Mortgage shall be effective to create, in favor of the Collateral Agent, for its
benefit and the benefit of the Secured Parties, legal, valid and enforceable perfected Liens on, and
security interest in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Properties
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thereunder, subject only to Liens permitted under the Loan Documents, and when the Mortgages are filed
in the offices specified on Schedule 5(a) to the Perfection Certificate (or, in the case of any Mortgage
executed and delivered after the date thereof in accordance with the provisions of Sections 5.09 and 5.11,
when such Mortgage is filed in the offices specified in the local counsel opinion delivered with respect
thereto in accordance with the provisions of Sections 5.09 and 5.11), the Mortgages shall constitute fully
perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in the
Mortgaged Properties, in each case prior in right to any other Person, other than Liens permitted under
the Loan Documents.
SECTION 3.21. Material Property. As of the Effective Date, Schedule 5.09 sets
forth all the real property of the Loan Parties described in clause (i) of the definition of “Material Real
Property” as of such date.
SECTION 3.22. Patriot Act. The Borrower is in compliance in all material respects
with applicable provisions of the Patriot Act.
SECTION 3.23. Beneficial Ownership Certification. The information included in the
Beneficial Ownership Certification (if any) is true and correct in all material respects.
SECTION 3.24. Designation as Senior Debt. The Obligations constitute “Designated
Senior Debt”, or any similar term under and as defined in the agreements relating to any Indebtedness of
the Borrower or any Subsidiary Guarantor, including any subordinated Indebtedness, which contains
such designation.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. Notwithstanding the execution and delivery of this
Agreement on the date hereof, this Agreement shall not become effective and the obligations of the
Lenders to make Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02) (the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received from each party
hereto (i) a counterpart of this Agreement signed on behalf of such party, (ii) a counterpart of the
Subsidiary Guaranty substantially in the form of Exhibit J signed on behalf of each Subsidiary Guarantor
and the Administrative Agent, (iii) a counterpart of the Security Agreement substantially in the form of
Exhibit K signed on behalf of each party thereto, (iv) a counterpart of the Intellectual Property Security
Agreement (if any) substantially in the forms attached to the Security Agreement signed on behalf of
each party thereto and (v) a counterpart of the First Lien/First Lien Intercreditor Agreement substantially
in the form of Exhibit H signed on behalf of each party thereto (including the administrative agent and
collateral agent under the Revolving Credit Agreement and the Acknowledgment of Grantors with
respect thereto signed by each Loan Party), or, in each case, written evidence satisfactory to the
Administrative Agent (which may include electronic transmission of a signed signature page required by
this Section 4.01(a)) that such party has signed a counterpart of the relevant document.
(b) The Administrative Agent shall have received a written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Latham & Watkins LLP,
McGuireWoods LLP and in-house counsel to the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent and covering such other matters relating to the Loan Parties, the
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Loan Documents or the Transactions as the Administrative Agent shall reasonably request. The
Borrower hereby requests such counsel to deliver such opinion.
(c) Subject to Section 5.11, the Collateral Agent shall have received each document
(including any UCC (or similar) financing statement) required by the applicable Collateral Documents
under law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the
benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered on the Effective
Date, prior in right to any other Person (other than with respect to Liens permitted under this Agreement),
each such document shall be in proper form for filing, registration or recordation and such documents
shall include, but are not limited to a completed Perfection Certificate, dated the Effective Date and
executed by or on behalf of the Loan Parties.
(d) The Lenders shall have received (i) the audited balance sheets of the Borrower
as of September 30, 2016, September 30, 2017 and September 30, 2018, and the related audited income
and equity cash flow statements for the fiscal years ended on such dates, (ii) the unaudited balance sheets
of the Target as of December 31, 2017 and December 31, 2018, and the related unaudited income and
equity cash flow statements for the fiscal years ended on such dates, in each case, to the extent delivered
to the Borrower pursuant to the terms of the Columbia Acquisition Agreement, (iii) the unaudited
balance sheets of each of the Borrower and the Target as of the end of, and the related unaudited income
and equity cash flow statements for, each subsequent fiscal quarter ended at least 45 days before the
Effective Date (other than any fiscal fourth quarter), and for the comparable period of the prior fiscal
year, in each case (with respect to the financial statements of the Target) to the extent delivered to the
Borrower pursuant to the terms of the Columbia Acquisition Agreement and (iv) a pro forma
consolidated balance sheet and related unaudited pro forma income statement of the Borrower and its
Subsidiaries (based on the financial statements referred to in clauses (ii) and (iii) immediately above) as
of and for the 12-month period ending on the last day of the most recently completed four-fiscal quarter
period ended at least 45 days prior to the Effective Date (or, if the most recently completed fiscal period
is the end of a fiscal year, ended at least 90 days before the Effective Date), prepared after giving effect
to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet)
or at the beginning of such period of operations (in the case of such other financial statements); provided
that the pro forma financial statements required to be delivered by this paragraph (c) shall meet the
requirements of Regulation S-X under the Securities Act of 1933, as amended from time to time, and all
other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration
statement under such Act on Form S-1.
(e) The Administrative Agent shall have received (i) resolutions and other evidence
of authority authorizing this Agreement and the other Loan Documents and the other transactions
contemplated hereby, (ii) a good standing certificate or the equivalent, if any, in the jurisdiction of
organization of each Loan Party and (iii) a certificate of the Secretary or Assistant Secretary of each
Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign
the Loan Documents to which it is a party and attaching such Person’s certificate of incorporation and
bylaws or other equivalent organizational documents.
(f) The Administrative Agent shall have received, at least three (3) days prior to the
Effective Date, (i) all documentation and other information regarding the Borrower requested in
connection with applicable “know your customer” and anti-money laundering rules and regulations,
including the Patriot Act, to the extent requested in writing of the Borrower at least ten (10) days prior to
the Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the
Beneficial Ownership Regulation, at least five days prior to the Effective Date, any Lender that has
requested, in a written notice to the Borrower at least ten (10) days prior to the Effective Date, a
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Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial
Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature
page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(g) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (i), (j), (k) and (l) of this Section 4.01.
(h) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced at least two (2) Business Days
prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(i) None of the Borrower, the Target and the Borrower’s and the Target’s respective
Subsidiaries shall be obligors in respect of any third-party Indebtedness for borrowed money (other than
the Revolving Credit Agreement, any Permitted Receivables Facility and Indebtedness set forth on
Schedule 6.01).
(j) The Columbia Acquisition shall have been consummated in all material respects
pursuant to and on the terms set forth in the Columbia Acquisition Agreement.
(k) The representations and warranties of the Borrower set forth in this Agreement
shall be true and correct in all material respects (except that any representation or warranty which is
already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in
all respects) on and as of the date of such Borrowing.
(l) At the time of and immediately after giving effect to such Borrowing, no Default
or Event of Default shall have occurred and be continuing.
(m) The Administrative Agent shall have received (x) a solvency certificate
substantially in the form of Exhibit G from a Financial Officer of the Borrower and (y) a Borrowing
Request substantially in the form of Exhibit D hereto from a Responsible Officer of the Borrower.
(n) The Revolving Credit Agreement shall have been amended to permit the
Transactions.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of and interest
on each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower will
furnish to the Administrative Agent (and the Administrative Agent shall promptly provide the same to the
Lenders):
(a) within one hundred five (105) days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in each case in comparative form
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the figures for the previous fiscal year, all reported on by Ernst & Young LLP or other independent
public accountants of recognized national standing (without a “going concern” or like qualification or
exception (other than a “going concern” qualification resulting solely from (i) an upcoming maturity date
under any Indebtedness occurring within one year from the time such opinion is delivered or (ii) a breach
or anticipated breach of financial covenants) and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied except for inconsistencies resulting
from changes in accounting principles and methods agreed to by the Borrower’s independent public
accountants, together with a customary management discussion and analysis;
(b) within fifty (50) days after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower, its consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for the then elapsed portion of the fiscal year
and, with respect to the statement of operations only, for such fiscal quarter, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes except for inconsistencies resulting
from changes in accounting principles and methods agreed to by the Borrower’s independent public
accountants, together with a customary management discussion and analysis;
(c) concurrently with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default or
Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.11, (iii) setting forth reasonably detailed
calculations of the Borrower’s Consolidated Total Leverage Ratio as of the end of such fiscal quarter or
fiscal year, as applicable, and (iv) stating whether any material change in GAAP or in the application
thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if
any such change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) [reserved];
(e) as soon as available, but in any event not more than fifteen (15) days after being
approved by the board of directors of the Borrower, and in no event later than November 15th of each
fiscal year of the Borrower, a copy of the plan and forecast (including a projected consolidated balance
sheet, income statement and funds flow statement) of the Borrower for the upcoming fiscal year in form
previously delivered to the Administrative Agent (provided, that, for the avoidance of doubt, such copy
of the plan and forecast shall not be provided by the Administrative Agent to any Public Lenders);
(f) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC,
or any Governmental Authority succeeding to any or all of the functions of the SEC, if any, or with any
national securities exchange, or distributed by the Borrower to its shareholders generally, if any, as the
case may be;
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(g) concurrently with any delivery of financial statements under clause (a) above, a
Perfection Certificate Supplement; and
(h) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance
with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Documents required to be delivered pursuant to Section 5.01(a), (b) or (f) (to the extent any such
documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if
so delivered, shall be deemed to have been delivered on the date (i) on which such materials are publicly
available as posted on the Electronic Data Gathering, Analysis and Retrieval system (EDGAR); or (ii) on
which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to
which each Lender and the Administrative Agent have access (whether a commercial, third-party website
or whether made available by the Administrative Agent); provided that: (A) upon written request by the
Administrative Agent (or any Lender through the Administrative Agent) to the Borrower, the Borrower
shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written
request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the
Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to
request the delivery of or to maintain paper copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender
for delivery, and each Lender shall be solely responsible for timely accessing posted documents or
requesting delivery of paper copies of such document to it and maintaining its copies of such documents.
To the extent the Borrower designates any of its Subsidiaries as an Unrestricted Subsidiary, the financial
statements referred to in this Section 5.01 shall be accompanied by reconciliation statements eliminating
the financial information pertaining to such Unrestricted Subsidiary or Unrestricted Subsidiaries. The
Borrower agrees that all financial statements provided pursuant to Section 5.01(a) and 5.01(b) shall be
deemed to be “PUBLIC” and may be provided to all Lenders, including Public Lenders.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender as soon as reasonably practicable, and in any event no later than
five (5) Business Days, after a Financial Officer obtains knowledge thereof written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any Restricted Subsidiary that,
if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event, or similar event with respect to a Foreign
Plan, that, alone or together with any other such ERISA Events or similar events that have occurred,
could reasonably be expected to result in a Material Adverse Effect;
(d) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect; and
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(e) any change in the information provided in the Beneficial Ownership
Certification delivered to such Lender that would result in a change to the list of beneficial owners
identified in such certification.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or
other executive officer of the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause
each of its Restricted Subsidiaries to, do or cause to be done all things necessary to (i) preserve, renew
and keep in full force and effect its legal existence, (ii) preserve, renew and keep in full force and effect
the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and
Intellectual Property rights material to the conduct of its business, and (iii) maintain all requisite
authority to conduct its business in each jurisdiction in which its business is conducted, except where the
failure to do so under clause (ii) or (iii) could not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect; provided that the foregoing shall not prohibit any
merger, consolidation, Division, liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of
its Restricted Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in
a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower
or such Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with and as required by GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will
cause each of its Restricted Subsidiaries to:
(a) keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted; provided, however, that nothing shall
prevent the Borrower or any Restricted Subsidiary from discontinuing the operation or maintenance of
any property if such discontinuance is, in the reasonable business judgment of the Borrower or such
Restricted Subsidiary, desirable in the conduct of the business of the Borrower or such Restricted
Subsidiary and such discontinuance could not reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect;
(b) maintain, with financially sound and reputable insurance companies, insurance
in such amounts and against such risks as are customarily maintained by companies engaged in the same
or similar businesses;
(c) subject to Section 5.11, following the Effective Date, ensure that any third-party
liability (other than directors and officers liability insurance; insurance policies relating to employment
practices liability or workers’ compensation; crime; fiduciary duties; kidnap and ransom; flood (except as
required by clause (d) below); fraud, errors and omissions; marine and aircraft liability and excess
liability; and construction programs) and property insurance policies of the Loan Parties described in
Section 5.05(b) with respect to the Collateral shall name the Collateral Agent as an additional insured
(solely in the case of liability insurance) or loss payee (solely in the case of property insurance with
respect to the Collateral), as applicable; and
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(d) subject to Sections 5.09 and 5.11, so long as a Mortgage in respect of Mortgaged
Property with improvements that are located in a special flood hazard area is then in effect, with respect
to each Mortgaged Property located in a special flood hazard area:
(i) obtain flood insurance in compliance with the Flood Insurance Laws and
the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973,
as amended from time to time, as reasonably determined by the Administrative Agent; and
(ii) deliver to the Administrative Agent annual renewals of each flood
insurance policy or annual renewals of each force-placed flood insurance policy, as applicable.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Restricted Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Restricted Subsidiaries to, permit any representatives designated
by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to discuss its affairs, finances
and condition with its financial officers and, during the continuance of an Event of Default, its
independent accountants, all at such reasonable times and as often as reasonably requested. The
Borrower acknowledges that the Administrative Agent, after exercising its rights of inspection, may
prepare and distribute to the Lenders certain reports pertaining to the Borrower and its Restricted
Subsidiaries’ assets for internal use by the Administrative Agent and the Lenders.
SECTION 5.07. Compliance with Laws and Material Contractual Obligations. The
Borrower will, and will cause each of its Restricted Subsidiaries to, (i) comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its property (including without
limitation Environmental Laws), (ii) perform in all material respects its obligations under agreements to
which it is a party and (iii) to the extent required by Environmental Laws, conduct any investigation,
remedial or other corrective action necessary to address the presence of Hazardous Materials at any
property or facility in accordance with Environmental Laws, in each case except where the failure to do
so under clause (i), (ii) and (iii), individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and
procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.08. Use of Proceeds. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the
Board, including Regulations T, U and X. The Borrower will not request any Borrowing, and the
Borrower shall not use, and shall ensure that its Subsidiaries and its or their respective directors, officers,
employees and agents shall not use, the proceeds of any Borrowing (i) in furtherance of an offer,
payment, promise to pay, or authorization of the payment or giving of money, or anything else of value,
to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or
facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned
Country, to the extent such activities, businesses or transaction would be prohibited by Sanctions if
conducted by a corporation incorporated in the United States or in a European Union member state or
(iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
SECTION 5.09. Subsidiary Guaranty. (a) As promptly as possible but in any event
within thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any
Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the
Borrower or the Administrative Agent as, a Subsidiary Guarantor pursuant to the definition of “Material
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Domestic Subsidiary”, the Borrower shall provide the Administrative Agent with written notice thereof
setting forth information in reasonable detail describing the material assets of such Person and shall
cause each such Subsidiary which also qualifies as a Material Domestic Subsidiary to deliver to the
Administrative Agent a joinder to the Subsidiary Guaranty (in the form contemplated thereby) pursuant
to which such Subsidiary agrees to be bound by the terms and provisions thereof, such Subsidiary
Guaranty to be accompanied by appropriate corporate or limited liability company resolutions, other
corporate or limited liability company documentation and legal opinions (if requested) in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
(b) Subject to Section 5.11, with respect to any Subsidiary required to become a
Subsidiary Guarantor hereunder pursuant to Section 5.09(a), the Borrower shall, no later than the date on
which such Domestic Subsidiary becomes a Subsidiary Guarantor hereunder pursuant to Section 5.09(a)
(or such longer time period if agreed to by the Collateral Agent in its reasonable discretion), cause such
Subsidiary to execute and deliver a Security Agreement Supplement, an Acknowledgment of Grantors
with respect to each Intercreditor Agreement in effect and a Perfection Certificate and take such
additional actions (including the filing of Uniform Commercial Code financing statements and, if
applicable and required pursuant to the terms of the Loan Documents, delivering executed Intellectual
Property Security Agreements and certificates, instruments of transfer and stock powers in respect of
certificated Equity Interests), in each case as the Collateral Agent shall reasonably request for purposes
of granting and perfecting a Lien on the assets of such Subsidiary (other than Excluded Property) in favor
of the Collateral Agent under the Collateral Documents, subject to Liens permitted under the Loan
Documents and otherwise subject to the limitations and exceptions of this Agreement and the other Loan
Documents. If requested by the Collateral Agent, the Collateral Agent shall receive an opinion or
opinions of counsel for the applicable Loan Parties in form and substance reasonably satisfactory to the
Collateral Agent in respect of matters reasonably requested by the Collateral Agent relating to any
Security Agreement Supplement, Intellectual Property Security Agreement or other Collateral Document
delivered pursuant to this Section 5.09(b), dated as of the date of such Security Agreement Supplement,
Intellectual Property Security Agreement or other Collateral Document, as applicable.
(c) Subject to Section 5.11, with respect to each Loan Party that owns Material Real
Property, such Loan Party shall:
(i) no later than thirty (30) days (or such longer period as the Collateral
Agent may agree in its sole discretion) after the later of (x) the date such Person becomes a
Loan Party and (y) the date that any Material Real Property is acquired by such Loan Party,
deliver to the Collateral Agent a legal description with respect any fee-owned real property
that constitutes Material Real Property, information identifying any pipeline system that
constitutes Material Real Property, and the relevant recording offices for Mortgages with
respect to such Material Real Property;
(ii) no later than one hundred and twenty (120) days (or such longer period
as the Administrative Agent may agree in its sole discretion) after the later of (x) the date
such Person becomes a Loan Party and (y) the date that any Material Real Property is
acquired by such Loan Party, execute and deliver (A) counterparts of a Mortgage, duly
executed and delivered by the record owner of such property, together with evidence such
Mortgage has been duly executed and delivered by a duly authorized officer of each party
thereto, in form suitable for filing or recording in the jurisdiction where such Material Real
Property is located subject only to Liens permitted pursuant to Section 6.02 and other
Liens reasonably acceptable to the Collateral Agent on the property and/or rights described
therein in favor of the Collateral Agent for the benefit of the Secured Parties, and evidence
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that all filing and recording taxes and fees have been paid or will be paid in connection
with such recording or filing or otherwise provided for in a manner reasonably satisfactory
to the Collateral Agent, (B) for any Material Real Property other than a pipeline system, a
marked commitment for a standard policy of title insurance on such Mortgaged Property
naming the Collateral Agent as the insured for its benefit and that of the Secured Parties
and their respective successors and assigns subject to the terms of the policy jacket with
the final title policy to be delivered after recording of the Mortgage (a “Mortgage Policy”)
issued by a nationally recognized title insurance company reasonably acceptable to the
Collateral Agent in form and substance and in an amount reasonably acceptable to the
Collateral Agent, insuring the Mortgages to be valid Liens on the property described
therein, free and clear of all Liens other than Liens permitted pursuant to Section 6.02 and
other Liens reasonably acceptable to the Collateral Agent, each of which shall (1) contain a
“tie-in” or “cluster” endorsement, if available in the applicable jurisdiction at
commercially reasonable rates (i.e., policies which insure against losses regardless of
location or allocated value of the insured property up to a stated maximum coverage
amount) and (2) have been supplemented by such endorsements as shall be reasonably
requested by the Collateral Agent (including, if requested, endorsements on matters
relating to usury, first loss, last dollar, zoning, contiguity, doing business, public road
access, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax
lot, revolving credit, same as survey and so-called comprehensive coverage over covenants
and restrictions, to the extent such endorsements are available in the applicable jurisdiction
at commercially reasonable rates), together with evidence of payment of all premiums, (C)
for any Material Real Property other than a pipeline system, a survey (which may take the
form of an ALTA survey, aerial survey, ExpressMap or equivalent photographic depiction)
in form and substance sufficient to obtain the Mortgage Policy without the standard survey
exception and otherwise reasonably satisfactory to the Collateral Agent, (D) an opinion of
local counsel to the Loan Parties in the state in which such Mortgaged Property is located,
with respect to the enforceability of such Mortgage and any related fixture filings, in form
and substance reasonably satisfactory to the Collateral Agent and (E) to the extent not
previously delivered, a completed “life of the loan” Federal Emergency Management
Agency Standard Flood Hazard Determination with respect to such Mortgaged Property on
which any “building” (as defined in the Flood Insurance Laws) is located, and if such
property is in a special flood hazard area, duly executed and acknowledged by the
appropriate Loan Party, together with evidence of flood insurance as and to the extent
required under Section 5.05 hereof; and
(iii) notwithstanding anything to the contrary in the foregoing clauses (i) and
(ii), no later than one hundred and twenty (120) days (or such longer period as the Administrative
Agent may agree in its sole discretion) after the last Business Day of each December, if such
Loan Party owns a pipeline system encumbered by a Mortgage in accordance with the terms
hereof and has acquired additional fee-owned or leasehold interests in connection with such
pipeline system, and the aggregate book value of all such additional fee-owned and leasehold
interests not yet subject to a Mortgage exceeds $25,000,000, execute and deliver (A)
counterparts of a Mortgage and/or supplement to a Mortgage, duly executed and delivered by the
record owner of such property, together with evidence such Mortgage or supplement has been
duly executed and delivered by a duly authorized officer of each party thereto, in form suitable
for filing or recording in the jurisdiction where such Material Real Property is located subject
only to Liens permitted pursuant to Section 6.02 and other Liens reasonably acceptable to the
Collateral Agent on the property and/or rights described therein in favor of the Collateral Agent
for the benefit of the Secured Parties, and evidence that all filing and recording taxes and fees
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have been paid or will be paid in connection with such recording or filing or otherwise provided
for in a manner reasonably satisfactory to the Collateral Agent, (B) an opinion of local counsel to
the Loan Parties in the state in which such Mortgaged Property is located, with respect to the
enforceability of such Mortgage or supplement and any related fixture filings, in form and
substance reasonably satisfactory to the Collateral Agent and (C) to the extent not previously
delivered, a completed “life of the loan” Federal Emergency Management Agency Standard
Flood Hazard Determination with respect to such Mortgaged Property on which any “building”
(as defined in the Flood Insurance Laws) is located, and if such property is in a special flood
hazard area, duly executed and acknowledged by the appropriate Loan Party, together with
evidence of flood insurance as and to the extent required under Section 5.05 hereof.
Notwithstanding anything herein or in any other Loan Document to the contrary, with respect to any
Material Real Property on which any “building” (as defined in the Flood Insurance Laws) is located, the
Loan Parties shall not be required to comply with Section 5.09(c)(ii), Section 5.09(c)(iii) or 5.11(a),
unless and until, and subject to the Intercreditor Agreement, (i) each Lender shall have advised the
Administrative Agent in writing that it has completed its due diligence with respect to any applicable
flood insurance requirements relating to such Material Real Property and (ii) the Administrative Agent
shall have provided the Borrower with written notice of the satisfaction of the requirements in the
foregoing clause (i) and shall have requested, in a writing delivered to the Borrower, that such Loan
Parties comply with the applicable requirements of Section 5.09(c)(ii), Section 5.09(c)(iii) or Section
5.11(a), which compliance shall not be required until the later of (x) the dates provided for in Section
5.09(c) or 5.11(a), as applicable, and (y) the date that is ten (10) Business Days (or such longer period as
the Administrative Agent may agree in its sole discretion) after such written notice is delivered to the
Borrower pursuant to this clause (ii).
SECTION 5.10. Maintenance of Ratings. Use commercially reasonable efforts to
cause the Loans to be continuously publicly rated by Fitch and Moody’s and use commercially
reasonable efforts to maintain a public corporate rating from Fitch and a public corporate family rating
from Moody’s, in each case in respect of the Borrower; provided, that the Borrower shall not be required
to maintain any minimum credit rating.
SECTION 5.11.Post-Closing Conditions.
(a) Notwithstanding anything to the contrary in any Loan Document, no later than
one hundred and eighty (180) days after the Effective Date (or such longer period as the Administrative
Agent may agree in its sole discretion), the Borrower shall cause to be delivered to the Administrative
Agent each item described in Section 5.09(c) for each Material Real Property described in clause (i) of
the definition of “Material Real Property”.
(b) Notwithstanding anything to the contrary in any Loan Document, no later than
thirty (30) days after the Effective Date (or such longer period as the Administrative Agent may agree in
its sole discretion), the Borrower shall deliver to the Administrative Agent insurance certificates
evidencing that each policy of insurance described in Section 5.05(c) names the Administrative Agent as
an additional insured (solely in the case of liability insurance) or loss payee (solely in the case of
property insurance), as applicable.
SECTION 5.12.Further Assurances. The Borrower shall, or shall cause each applicable
Loan Party to, promptly upon reasonable request by the Administrative Agent or the Collateral Agent, (i)
correct any material defect or error that may be discovered in the execution, acknowledgment, filing or
recordation of any Collateral Document or other document or instrument relating to any Collateral, and
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(ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or the
Collateral Agent may reasonably request from time to time in order to carry out more effectively the
purposes of the Intercreditor Agreement (if in effect) or the Collateral Documents, to the extent required
pursuant to the Collateral Documents. If the Collateral Agent reasonably determines that it is required by
applicable law to have appraisals prepared in respect of the Mortgaged Property of any Loan Party, the
Borrower shall cooperate with the Administrative Agent to obtain appraisals that satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount thereof;
provided that (i) such Indebtedness is incurred prior to or within ninety (90) days after such acquisition
or the completion of such construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this clause (b) shall not exceed the greater of (A) $100,000,000 and (B) 40%
of Consolidated EBITDA, determined on a Pro Forma Basis as of the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements were available at any time outstanding;
(c) Indebtedness of the Borrower or any Restricted Subsidiary incurred pursuant to
Permitted Receivables Facilities; provided that the Attributable Receivables Indebtedness thereunder
shall not exceed the greater of (i) $400,000,000 and (ii) 150% of Consolidated EBITDA, determined on a
Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which
financial statements were available at any time outstanding;
(d) Indebtedness existing on the date hereof and set forth on Schedule 6.01 and
extensions, renewals, refinanced and replacements of any such Indebtedness, provided that any such
extended, renewed, refinanced or replaced Indebtedness shall not increase the principal amount (and, in
the case of Indebtedness consisting, in whole or in part, of unused revolving commitments, the applicable
amount thereof) except by an amount equal to unpaid accrued interest and premium thereon plus other
reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such
modification, refinancing, refunding, renewal or extension and by an amount equal to any existing
commitments unutilized thereunder, any Liens securing such Indebtedness shall not be extended to any
additional property of the Borrower or any Restricted Subsidiary, none of the Borrower or any Restricted
Subsidiary that is not originally obligated with respect to repayment of the original Indebtedness is
required to become obligated with respect to such Indebtedness, such Indebtedness shall not shorten the
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Weighted Average Life to Maturity of the original Indebtedness and if the original Indebtedness was
subordinated in right of payment to the Obligations, then the terms and conditions of such Indebtedness
must include subordination terms and conditions that are at least as favorable to the Administrative Agent
and the Lenders as those that were applicable to the original Indebtedness;
(e) Incremental Equivalent Debt incurred when the Indebtedness Incurrence
Conditions with respect thereto are satisfied; provided that the principal amount of any Incremental
Equivalent Debt that may be incurred at any time shall not exceed the Incremental Cap at such time;
(f) Indebtedness of the Borrower and its Restricted Subsidiaries incurred pursuant to
the Revolving Credit Agreement; provided that the aggregate amount of commitments thereunder
(measured at the time of incurrence) shall not exceed the greater of (x) $425,000,000 and (y) an amount
equal to 125% of Consolidated EBITDA as of the most recently ended period of four consecutive fiscal
quarters;
(g) unsecured Indebtedness so long as upon the creation, incurrence or assumption
thereof (i) no Default or Event of Default shall be continuing and (ii) the Borrower shall be in
compliance on a Pro Forma Basis with the Maximum Consolidated Total Leverage Ratio;
(h) unsecured Indebtedness of the Borrower or any Restricted Subsidiary owing to
any Affiliate which is subordinated to the payment of the Obligations in accordance with the terms set
forth on Exhibit B hereto or on terms and conditions otherwise acceptable to the Administrative Agent;
(i) letters of credit, letters of guaranty, bankers’ acceptances, surety bonds and other
similar bond obligations of the Borrower and any Restricted Subsidiaries; and
(j) additional unsecured Indebtedness of the Borrower and its Restricted
Subsidiaries not to exceed $75,000,000 in the aggregate.
SECTION 6.02. Liens. The Borrower will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Restricted Subsidiary
existing on the Effective Date and set forth in Schedule 6.02; provided that (i) such Lien shall not apply
to any other property or asset of the Borrower or any Restricted Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the Effective Date (and, in the case of Indebtedness consisting,
in whole or in part, of unused revolving commitments, the applicable amount thereof) and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Restricted Subsidiary or existing on any property or asset of any Person that becomes a
Restricted Subsidiary after the Effective Date prior to the time such Person becomes a Restricted
Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Restricted Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Restricted Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the date of such acquisition or the date such
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Person becomes a Restricted Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or improved by the
Borrower or any Restricted Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (b) of Section 6.01, (ii) such security interests and the Indebtedness secured thereby
are incurred prior to or within ninety (90) days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not
apply to any other property or assets of the Borrower or any Restricted Subsidiary;
(e) Liens arising under Permitted Receivables Facilities;
(f) Liens on assets of the Borrower and its Restricted Subsidiaries not otherwise
permitted hereunder which secure obligations not constituting Indebtedness so long as the aggregate
amount of the obligations secured thereby does not at any time exceed $30,000,000;
(g) any Lien on deposits made on account of Swap Agreements from time to time in
the ordinary course of the business of the Borrower and its Restricted Subsidiaries consistent with past
practice;
(h) Liens securing the Obligations;
(i) Liens on the Collateral securing the Indebtedness incurred pursuant to Section
6.01(e) (and subject to the term thereof); provided that if such Indebtedness is secured (i) on a pari passu
basis with the Obligations, such Indebtedness shall be subject to the First Lien/First Lien Intercreditor
Agreement or (ii) on a junior basis to the Obligations, such Indebtedness shall be subject to the First
Lien/Second Lien Intercreditor Agreement; and
(j) Liens on the Collateral and the LC Collateral Account securing the Indebtedness
incurred pursuant to Section 6.01(f) (and subject to the term thereof) and the other “Obligations” (as
defined in the Revolving Credit Agreement as in effect on the date hereof); provided that such Liens shall
be subject to the First Lien/First Lien Intercreditor Agreement.
SECTION 6.03. Fundamental Changes and Asset Sales.
(a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it,
consummate a Division as the Dividing Person, or otherwise Dispose of any of its assets (including
pursuant to a Sale and Leaseback Transaction), or any of the Equity Interests of any of its Restricted
Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except
that, (x) the Borrower or any Restricted Subsidiary may sell Receivables under (i) Permitted Receivables
Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; and (y)
if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have
occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation;
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(ii) any Restricted Subsidiary may merge into a Loan Party in a transaction
in which the surviving entity is such Loan Party (provided that any such merger involving the
Borrower must result in the Borrower as the surviving entity);
(iii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose
of its assets to a Loan Party;
(iv) the Borrower and its Restricted Subsidiaries may (A) sell inventory in
the ordinary course of business, (B) sell or lease storage or pipeline capacity in the ordinary
course of business, (C) effect sales, trade-ins or dispositions of used equipment for value in the
ordinary course of business consistent with past practice, (D) enter into licenses of technology in
the ordinary course of business, and (E) in addition to clauses (A) through (D) above, make any
other sales, transfers, leases or dispositions that, together with all other property of the Borrower
and its Restricted Subsidiaries previously leased, sold or disposed of as permitted by this
clause (E) at any time after the Effective Date, does not exceed $200,000,000;
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) any Restricted Subsidiary that is not a Loan Party may merge into any
Restricted Subsidiary (provided that any such merger involving a Restricted Subsidiary that is a
Loan Party must result in such Loan Party being the surviving entity);
(vii) the Borrower and the Restricted Subsidiaries may engage in any
transactions constituting Restricted Payments to the extent permitted under Section 6.07 and
Investments to the extent permitted under Section 6.04; and
(viii) any Subsidiary may (A) Dispose of Investments in cash and Permitted
Investments in the ordinary course of business, (B) effect Dispositions in connection with any
theft, loss, physical destruction or damage, taking or similar event with respect to any of their
respective properties; and (C) effect the write-off of good will or other intangibles in the ordinary
course of business.
Upon the occurrence and during the continuance of an Event of Default, the Administrative
Agent, at the request of the Required Lenders, shall by notice to the Borrower direct the
Borrower to cause any Receivables Entity to exercise any voluntary option available to such
Receivables Entity under the applicable Permitted Receivables Facility to terminate such
Permitted Receivables Facility and the Borrower shall, upon receipt of such direction, cause such
Receivables Entity to exercise such option and cause the Receivables Entity to, to the extent
required thereunder in connection with the exercise of such option, repurchase all purchase
interests in any Receivables or take such other actions, in each case, in accordance with the terms
of the Permitted Receivables Facility Document. The Administrative Agent shall provide
concurrent notice to the administrative agent under the applicable Permitted Receivables Facility
of any direction delivered to the Borrower pursuant to the foregoing sentence (provided that the
Administrative Agent shall not be liable to such administrative agent or any securitization lender
or purchaser for failure to provide such notice).
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to,
engage to any material extent in any business other than businesses of the type conducted by the
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Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.
(c) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to,
change its fiscal year from the basis in effect on the date hereof.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger or consolidation with, or as a Division Successor pursuant to the
Division of, any Person that was not a wholly owned Restricted Subsidiary prior to such merger or
consolidation or Division) any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any
Person or any assets of any other Person constituting a business unit (each of the foregoing, an
“Investment”), except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) Investments by the Borrower and its Restricted Subsidiaries existing on the date
hereof in the capital stock of its Restricted Subsidiaries and Investments existing on the Effective Date
and set forth on Schedule 6.04;
(d) Investments made by the Borrower in or to any Restricted Subsidiary and made
by any Subsidiary in or to the Borrower or any other Restricted Subsidiary (provided that Investments by
Loan Parties in or to Restricted Subsidiaries which are not Loan Parties shall not exceed an amount equal
to the lesser of (x) fifteen percent (15.0%) of the Borrower’s Consolidated EBITDA and (y) fifteen
percent (15.0%) of the Borrower’s Consolidated Total Assets, in each case, as of the end of any such
fiscal quarter for which financial statements have been delivered pursuant to Section 5.01);
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) Investments acquired by reason of the exercise of customary creditor’s rights
upon default or pursuant to the bankruptcy, insolvency or reorganization of an account debtor of the
Borrower or any Restricted Subsidiary;
(g) Investments by the Borrower or any Restricted Subsidiary pursuant to any Swap
Agreements to the extent permitted under Section 6.05;
(h) Investments by the Borrower or any Restricted Subsidiary in equity interests of
Persons (other than Restricted Subsidiaries) engaged in lines of business of the type conducted by the
Borrower and its Restricted Subsidiaries as of the Effective Date and businesses reasonably related
thereto; provided that no investment shall be made under this clause (h) if, together with all other
investments under this clause (h) (calculated as of the date made and without giving effect to any
increase or decrease in the value thereof), the aggregate amount of all investments under this clause (h)
shall exceed 10% of Consolidated Total Assets (calculated as of the last day of the most recent fiscal
year);
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(i) Investments by UGI PennEast, LLC, a Delaware limited liability company,
pursuant to that certain Amended and Restated Limited Liability Company Agreement of PennEast
Pipeline Company, LLC, dated as of October 13, 2014, as amended by that certain Amendment Number
1 to Amended and Restated Limited Liability Company Agreement, dated as of November 24, 2014 and
as further amended by that certain Amendment Number 2 to Amended and Restated Limited Liability
Company Agreement, dated as of July 29, 2015, not in the excess of $250,000,000 during the term of this
Agreement;
(j) other Investments by the Borrower or any Restricted Subsidiary not in excess of
7.50% of Consolidated Total Assets (calculated as of the last day of the most recent fiscal year for which
financial statements have been delivered pursuant to Section 5.01);
(k) payment or performance Guarantees of Affiliates (other than any Subsidiaries of
the Borrower) not constituting Indebtedness in an amount not to exceed $20,000,000 at any time
outstanding;
(l) Investments made at any time, so long as (x) no Default or Event of Default has
occurred and is continuing prior to making such Investment or would arise after giving effect (including
giving effect on a Pro Forma Basis) thereto and (ii) the Borrower is in compliance, on a Pro Forma Basis
after giving effect to such Investment, with a Consolidated Total Net Leverage Ratio no greater than
2.50:1.00 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for
which financial statements are available, as if such Investment had occurred on the first day of each
relevant period for testing such compliance;
(m) Permitted Loan Purchases;
(n) Investments by UGI Pennant, LLC, a Delaware limited liability company,
pursuant to that certain Amended and Restated Limited Liability Company Agreement of Pennant
Midstream, LLC, dated September 30, 2015, as amended July 28, 2016 and May 8, 2019, not in the
excess of $150,000,000 during the term of this Agreement; and
(o) Investments made at any time not to exceed the Cumulative Retained Excess
Cash Flow at such time, so long as (x) no Default or Event of Default has occurred and is continuing
prior to making such Investment or would arise after giving effect (including giving effect on a Pro
Forma Basis) thereto and (ii) the Borrower is in compliance, on a Pro Forma Basis after giving effect to
such Investment, with the financial covenant contained in Section 6.11 recomputed as of the last day of
the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if
such Investment had occurred on the first day of each relevant period for testing such compliance;
SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered
into to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary has actual exposure
(other than those in respect of Equity Interests of the Borrower or any of its Restricted Subsidiaries), and
(b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from
fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Restricted Subsidiary.
SECTION 6.06. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on
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terms and conditions not less favorable to the Borrower or such Restricted Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the
Borrower and its wholly owned Restricted Subsidiaries not involving any other Affiliate, (c) in the
ordinary course of business consistent with past practices for the provision of general and customary
corporate services, (d) any Restricted Payment permitted by Section 6.07, (e) transactions pursuant to
agreements, instruments or arrangements in existence on the Closing Date and set forth in Schedule 6.06
or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material
respect or could otherwise reasonably be expected to have a Material Adverse Effect, (f) any Investment
permitted under Section 6.04, (g) payments to or from, and transactions with, joint ventures (to the extent
any such joint venture is an Affiliate solely as a result of Investments by the Borrower or any Subsidiary
in such joint venture) in the ordinary course of business to the extent otherwise permitted under Section
6.04, (h) Permitted Receivables Facilities with Receivables Entities, (i) employment and severance
arrangements (including stock option plans, restricted stock agreements and employee benefit plans and
arrangements) with their respective officers and employees in the ordinary course of business, (j)
payment of customary fees and reasonable out of pocket costs to, and indemnities for the benefit of,
directors, officers and employees of the Borrower and its Subsidiaries in the ordinary course of business
to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries, (k) any
transaction that is approved by a majority of the disinterested directors of the board of directors of the
Borrower or such Subsidiary, as applicable, and (l) transactions in the ordinary course of business in
connection with reinsuring the self-insurance programs or other similar forms of retained insurable risks
of the business operated by the Borrower, its Subsidiaries and its Affiliates.
SECTION 6.07. Restricted Payments. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its Equity
Interests payable solely in additional shares of its common stock, (b) (i) wholly-owned Restricted
Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests and
(ii) Restricted Subsidiaries which are not wholly-owned may declare and pay dividends ratably with
respect to their Equity Interests so long as no Default or Event of Default has occurred and is continuing
prior to making such Restricted Payment or would arise after giving effect (including giving effect on a
Pro Forma Basis) thereto, (c) the Borrower may make Restricted Payments pursuant to and in accordance
with stock option plans or other benefit plans for management or employees of the Borrower and its
Restricted Subsidiaries, (d) the Borrower may declare and pay dividends with respect to taxes ratably
allocated by the Parent to the business of the Borrower and its Restricted Subsidiaries, (e) distributions of
property by a Restricted Subsidiary to the Borrower in connection with a transaction permitted by
Section 6.04(h), (f) Restricted Payments in an aggregate amount not to exceed the greater of (x)
$225,000,000 and (y) an amount equal to 75% of Consolidated EBITDA as of the most recently ended
period of four consecutive fiscal quarters; provided that the Borrower may make additional Restricted
Payments pursuant to this clause (f) if (i) the RP Leverage Ratio as of the last day of the most recently
ended fiscal quarter of the Borrower immediately prior to the date such Restricted Payment is made was
no greater than 3.50 to 1.0, (ii) the RP Leverage Ratio is no greater than 3.50 to 1.0 calculated on a pro
forma basis giving effect to such Restricted Payment and (iii) no Default or Event of Default has
occurred and is continuing prior to making such Restricted Payment or would arise after giving effect
(including giving effect on a Pro Forma Basis) thereto, (g) the Borrower and its Restricted Subsidiaries
may make any other Restricted Payment at any time in an amount not to exceed the Cumulative Retained
Excess Cash Flow at such time so long as (i) no Default or Event of Default has occurred and is
continuing prior to making such Restricted Payment or would arise after giving effect (including giving
effect on a Pro Forma Basis) thereto and (ii) the Borrower is in compliance, on a Pro Forma Basis after
giving effect to such Restricted Payment, with the financial covenant contained in Section 6.11
recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which
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financial statements are available, as if such Restricted Payment had occurred on the first day of each
relevant period for testing such compliance, (h) the Borrower may make a Restricted Payment with the
proceeds of the Initial Term Loans on the Effective Date so long as such Restricted Payment is used to
repay interim financing incurred by the Borrower and its Restricted Subsidiaries in connection with
closing the Columbia Acquisition and (i) Restricted Payments in an aggregate amount not to exceed the
amount of net proceeds contributed to the Borrower as cash capital contributions by Parent or any other
parent entity.
SECTION 6.08. Restrictive Agreements. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of
the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Restricted Subsidiary to pay dividends or other distributions
with respect to holders of its Equity Interests or to make or repay loans or advances to the Borrower or
any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law,
regulation or any regulatory body or by any Loan Document, (ii) the foregoing shall not apply to
restrictions or conditions contained in the Permitted Receivables Facility Documents or in agreements
relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Restricted Subsidiary that is to be sold in a sale permitted hereunder,
(iii) clause (a) of the foregoing shall not apply to (A) restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only
to the property or assets securing such Indebtedness, (B) customary provisions in leases and other
contracts restricting the assignment thereof, (C) customary security requirements imposed by any
agreement related to Indebtedness permitted by this Agreement, (D) restrictions or conditions contained
in any agreements previously disclosed to the Lenders as of, and existing on, the date hereof, and (E)
restrictions or conditions contained in any Indebtedness permitted by this Agreement so long as the scope
of such restrictions or conditions are not more restrictive than the restrictions and conditions permitted
pursuant to the preceding clause (D) and (iv) the foregoing shall not apply to customary provisions in
joint venture agreements and other similar agreements applicable to joint ventures permitted under
Section 6.04 and applicable solely to such joint venture.
SECTION 6.09. Junior Indebtedness and Agreements. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) Permit (i) any waiver, supplement, modification or amendment of any indenture,
instrument or agreement pursuant to which any Junior Indebtedness of the Borrower or any of the
Restricted Subsidiaries is outstanding if the effect of such waiver, supplement, modification or
amendment would materially increase the obligations of the obligor or confer additional material rights
on the holder of such Junior Indebtedness in a manner materially adverse to the Borrower, any of the
Restricted Subsidiaries or the Lenders or (ii) any waiver, supplement, modification or amendment of its
certificate of incorporation, by-laws, operating, management or partnership agreement or other
organizational documents, to the extent any such waiver, supplement, modification or amendment would
be adverse to the Lenders in any material respect; or
(b) (i) Make any distribution, whether in cash, property, securities or a combination
thereof, other than regular scheduled payments of principal and interest as and when due (to the extent
not prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or directly
or indirectly redeem, repurchase, retire or otherwise acquire for consideration, or set apart any sum for
the aforesaid purposes, any Junior Indebtedness except (A) refinancings of Indebtedness permitted by
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Section 6.01, subject to the Permitted Refinancing Terms, (B) payments made at any time not to exceed
the Cumulative Retained Excess Cash Flow at such time, so long as (x) no Default or Event of Default
has occurred and is continuing prior to making such payment or would arise after giving effect (including
giving effect on a Pro Forma Basis) thereto and (y) the Borrower is in compliance, on a Pro Forma Basis
after giving effect to such Restricted Payment, with the financial covenant contained in Section 6.11
recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which
financial statements are available, as if such payment had occurred on the first day of each relevant
period for testing such compliance and (C) any repayment of any intercompany Indebtedness incurred by
the Borrower and its Restricted Subsidiaries in connection with closing the Columbia Acquisition with
the proceeds of the Loans hereunder on the Effective Date or (ii) pay in cash any amount in respect of
any Junior Indebtedness or preferred Equity Interests that may at the obligor’s option be paid in kind or
in other securities.
SECTION 6.10. Sale and Leaseback Transactions. The Borrower shall not, nor shall
it permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction unless the
Borrower is in compliance, on a Pro Forma Basis after giving effect to such transaction, with the
Maximum Consolidated Total Leverage Ratio recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements were required to be delivered pursuant to
Section 5.01, as if such transaction had occurred on the first day of each relevant period for testing such
compliance.
SECTION 6.11. Financial Covenant. Minimum Debt Service Coverage Ratio. ,
theThe Borrower will not permit the Debt Service Coverage Ratio as of the last day of each fiscal
quarter, commencing with the fiscal quarter ending December 31, 2019, to be less than 1.10 to 1.00.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01.Events of Default. If any of the following events (“Events of Default”)
shall occur:
(a) any Loan Party shall fail to pay any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof
or otherwise;
(b) any Loan Party shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or
any other Loan Document, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five (5) Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the
Borrower or any Restricted Subsidiary in or in connection with this Agreement or any other Loan
Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in
any report, certificate, financial statement or other document furnished pursuant to or in connection with
this Agreement or any other Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty
which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have
been incorrect in any respect) when made or deemed made;
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(d) the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or
in Article VI;
(e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement (other than those specified in
clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue
unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when
and as the same shall become due and payable and such failure to pay shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;
(g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace
or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of
any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided,
further, that any default or event of default with respect to any financial maintenance covenant in the
Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless
and until the date on which the lenders under the Revolving Credit Facility have actually terminated the
commitments thereunder and declared all loans and other obligations thereunder to be immediately due
and payable.
(h) an involuntary proceeding shall be commenced or an involuntary petition shall
be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of
the foregoing shall be entered;
(i) the Borrower or any Restricted Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take
any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;
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(k) one or more judgments for the payment of money in an aggregate amount in
excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not
disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any
combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any
such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have
occurred that, when taken together with all other such ERISA Events or similar events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a
result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in
accordance with its terms (or the Borrower or any Restricted Subsidiary shall challenge the enforceability
of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid,
binding and enforceable in accordance with its terms); or
(o) subject to Sections 5.09 and 5.11, and except as released in accordance with
Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall cease to create a
valid and perfected Lien, to the extent and in the manner required under such Collateral Document and,
with the priority required by such Collateral Document, on and security interest in any material portion of
the Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that
any such loss of perfection or priority results from the failure of the Administrative Agent to maintain
possession of certificates actually delivered to it representing Equity Interests or promissory notes
pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or
continuation statements);
then, and in every such event (other than an event with respect to the Borrower described in clause (h) or
(i) of this Section 7.01), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower,
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other Obligations of the Borrower accrued hereunder and under the other Loan
Documents, shall become due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect
to the Borrower described in clause (h) or (i) of Section 7.01, the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the
other Loan Documents, shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the
occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the
request of the Required Lenders shall, (i) exercise any rights and remedies provided to the Administrative
Agent under the Loan Documents or at law or equity and (ii) at such time or times as the Administrative
Agent may elect, apply all or part of the proceeds constituting Collateral in payments of the Obligations
(and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the
Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other
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amounts received on account of the Obligations) in accordance with Section 4.02 of the Security
Agreement.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. . (a) Each Lender hereby irrevocably
appoints the entity named as Administrative Agent in the heading of this Agreement and its successors
and assigns to serve as the administrative agent under the Loan Documents and each Lender authorizes
the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such
agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the
foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to
perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party,
and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan
Documents. The Lenders and each other Secured Party (by becoming a party hereto or otherwise
obtaining the benefit of any Subsidiary Guaranty or any Collateral) irrevocably authorize and direct the
Collateral Agent to act as agent with respect to the Collateral under each of the Collateral Documents and
to enter into the Loan Documents relating to the Collateral for the benefit of the Lenders and the other
Secured Parties. For purposes of this Article VIII, unless the context otherwise requires, each reference
to the Administrative Agent shall mean and be a reference to the Administrative Agent as well as the
Collateral Agent.
(b) As to any matters not expressly provided for herein and in the other Loan
Documents (including enforcement or collection), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the written instructions of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms
in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon
each Lender; provided, however, that the Administrative Agent shall not be required to take any action
that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative
Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders with
respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law,
including any action that may be in violation of the automatic stay under any requirement of law relating
to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture,
modification or termination of property of a Defaulting Lender in violation of any requirement of law
relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the
Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise
of any such instructed action and may refrain from acting until such clarification or direction has been
provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the
Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by
the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this
Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights
or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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(c) In performing its functions and duties hereunder and under the other Loan
Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited
circumstances expressly provided for herein relating to the maintenance of the Register), and its duties
are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:
(i) the Administrative Agent does not assume and shall not be deemed to
have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of
or for any Lender or holder of any other obligation other than as expressly set forth herein and in
the other Loan Documents, regardless of whether a Default or an Event of Default has occurred
and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar
term) herein or in any other Loan Document with reference to the Administrative Agent is not
intended to connote any fiduciary duty or other implied (or express) obligations arising under
agency doctrine of any applicable law, and that such term is used as a matter of market custom
and is intended to create or reflect only an administrative relationship between contracting
parties); additionally, each Lender agrees that it will not assert any claim against the
Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent
in connection with this Agreement and the transactions contemplated hereby;
(ii) nothing in this Agreement or any Loan Document shall require the
Administrative Agent to account to any Lender for any sum or the profit element of any sum
received by the Administrative Agent for its own account;
(d) The Administrative Agent may perform any of its duties and exercise its rights
and powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any of their respective duties and exercise their respective rights and powers through their respective
Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective
activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the
negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction
determines in a final and nonappealable judgment that the Administrative Agent acted with gross
negligence or willful misconduct in the selection of such sub-agent.
(e) No arranger shall have any obligations or duties whatsoever in such capacity
under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in
such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
(f) In case of the pendency of any proceeding with respect to any Loan Party under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, the Administrative Agent (irrespective of whether the principal of any Loan or any other
obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Administrative Agent (including any claim under Sections 2.12,
2.13, 2.15, 2.17 and 9.03) allowed in such judicial proceeding; and
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(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such
proceeding is hereby authorized by each Lender and each other Secured Party 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 or the other Secured Parties, to pay to the Administrative Agent
any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including
under Section 9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
(g) The provisions of this Article are solely for the benefit of the Administrative
Agent and the Lenders, and, except solely to the extent of the Borrower’s rights to consent pursuant to
and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary, or any of
their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.
Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of
the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have
agreed to the provisions of this Article.
SECTION 8.02. Administrative Agent’s Reliance, Indemnification, Etc. (a) Neither
the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted
to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection
with this Agreement or the other Loan Documents (x) with the consent of or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in
the Loan Documents) or (y) in the absence of its own gross negligence or willful misconduct (such
absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and
non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any
Loan Party to perform its obligations hereunder or thereunder.
(b) The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof (stating that it is a “notice of default”) is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence
of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan
Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth
in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items (which on their
face purport to be such items) expressly required to be delivered to the Administrative Agent or
satisfaction of any condition that expressly refers to the matters described therein being acceptable or
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satisfactory to the Administrative Agent or (vi) the creation, perfection or priority of Liens on the
Collateral.
(c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee
of any promissory note as its holder until such promissory note has been assigned in accordance with
Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b), (iii) may consult
with legal counsel (including counsel to the Borrower), independent public accountants and other experts
selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any statements, warranties or
representations made by or on behalf of any Loan Party in connection with this Agreement or any other
Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan,
that by its terms must be fulfilled to the satisfaction of a Lender, may presume that such condition is
satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary
from such Lender sufficiently in advance of the making of such Loan and (vi) shall be entitled to rely on,
and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting
upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any
electronic message, Internet or intranet website posting or other distribution) or any statement made to it
orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by
the proper party or parties (whether or not such Person in fact meets the requirements set forth in the
Loan Documents for being the maker thereof).
SECTION 8.03. Posting of Communications. (a) The Borrower agrees that the
Administrative Agent may, but shall not be obligated to, make any Communications available to the
Lenders by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other
electronic platform chosen by the Administrative Agent to be its electronic transmission system (the
“Approved Electronic Platform”).
(b) Although the Approved Electronic Platform and its primary web portal are
secured with generally-applicable security procedures and policies implemented or modified by the
Administrative Agent from time to time (including, as of the Effective Date, a user ID/password
authorization system) and the Approved Electronic Platform is secured through a per-deal authorization
method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis,
each of the Lenders and the Borrower acknowledges and agrees that the distribution of material through
an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for
approving or vetting the representatives or contacts of any Lender that are added to the Approved
Electronic Platform, and that there may be confidentiality and other risks associated with such
distribution. Each of the Lenders and the Borrower hereby approves distribution of the Communications
through the Approved Electronic Platform and understands and assumes the risks of such distribution.
(c) THE APPROVED ELECTRONIC PLATFORM AND THE
COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE
BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
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APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT,
ANY ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY,
“APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR
ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES
(WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S
OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH
THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.
“Communications” means, collectively, any notice, demand, communication, information, document or
other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the
transactions contemplated therein which is distributed by the Administrative Agent, any Lender by means
of electronic communications pursuant to this Section, including through an Approved Electronic
Platform.
(d) Each Lender agrees that notice to it (as provided in the next sentence) specifying
that Communications have been posted to the Approved Electronic Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender
agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic
communication) from time to time of such Lender’s email address to which the foregoing notice may be
sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(e) Each of the Lenders and the Borrower agrees that the Administrative Agent may,
but (except as may be required by applicable law) shall not be obligated to, store the Communications on
the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable
document retention procedures and policies.
(f) Nothing herein shall prejudice the right of the Administrative Agent or any
Lender to give any notice or other communication pursuant to any Loan Document in any other manner
specified in such Loan Document.
SECTION 8.04. The Administrative Agent Individually. With respect to its
Commitment and Loans, the Person serving as the Administrative Agent shall have and may exercise the
same rights and powers hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms “Lenders”, “Required Lenders” and any similar
terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its
individual capacity as a Lender or as one of the Required Lenders, as applicable. The Person serving as
the Administrative Agent 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 of
banking, trust or other business with, the Borrower, any Subsidiary or any Affiliate of any of the
foregoing as if such Person was not acting as the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 8.05. Successor Administrative Agent. (a) The Administrative Agent may
resign at any time by giving 30 days’ prior written notice thereof to the Lenders and the Borrower,
whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be a bank with an office in
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New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject
to the prior written approval of the Borrower (which approval may not be unreasonably withheld and
shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of
any appointment as Administrative Agent by a successor Administrative Agent, such successor
Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and
duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent
by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement and the other Loan Documents. Prior to any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent
shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its
rights as Administrative Agent under the Loan Documents.
(b) Notwithstanding paragraph (a) of this Section, in the event no successor
Administrative Agent shall have been so appointed and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative
Agent may give notice of the effectiveness of its resignation to the Lenders and the Borrower,
whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the other
Loan Documents; provided that, solely for purposes of maintaining any security interest granted to the
Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring
Administrative Agent shall continue to be vested with such security interest as collateral agent for the
benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Collateral
Document and Loan Document, and, in the case of any Collateral in the possession of the Administrative
Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative
Agent is appointed and accepts such appointment in accordance with this Section (it being understood
and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further
action under any Collateral Document, including any action required to maintain the perfection of any
such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments
required to be made hereunder or under any other Loan Document to the Administrative Agent for the
account of any Person other than the Administrative Agent shall be made directly to such Person and
(B) all notices and other communications required or contemplated to be given or made to the
Administrative Agent shall directly be given or made to each Lender. Following the effectiveness of the
Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section
9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other
Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by
any of them while the retiring Administrative Agent was acting as Administrative Agent and in respect of
the matters referred to in the proviso under clause (i) above.
SECTION 8.06. Acknowledgments of Lenders. (a) Each Lender represents that it is
engaged in making, acquiring or holding commercial loans in the ordinary course of its business and that
it has, independently and without reliance upon the Administrative Agent, any arranger or any other
Lender, or any of the Related Parties of any of the foregoing, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent, any arranger or any other
Lender, or any of the Related Parties of any of the foregoing, and based on such documents and
information (which may contain material, non-public information within the meaning of the United
States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem
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appropriate, continue to make its own decisions in taking 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.
(b) Each Lender, by delivering its signature page to this Agreement on the Effective
Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document
pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of,
and consented to and approved, each Loan Document and each other document required to be delivered
to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.
SECTION 8.07. Collateral Matters. (a) Except with respect to the exercise of setoff
rights in accordance with Section 9.08 or with respect to a Secured Party’s right to file a proof of claim in
an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the
Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers,
rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on
behalf of the Secured Parties in accordance with the terms thereof.
(b) The Secured Parties irrevocably authorize the Administrative Agent, at its option
and in its discretion, 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 such property that is permitted by Section
6.02(a). The Administrative 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 Administrative 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 or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.
SECTION 8.08. Credit Bidding. The Secured Parties hereby irrevocably authorize
the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the
Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the
Obligations pursuant to a deed in lieu of foreclosure or otherwise) 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, including under Sections 363, 1123 or
1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is
subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of 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 Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the
Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with
respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a
ratable basis that shall 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) for the asset
or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or
vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the
Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any
successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable
interests in the Obligations which were credit bid shall be deemed without any further action under this
Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the
Administrative Agent shall be authorized 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 the assets or equity interests thereof,
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shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by
the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the
governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of
the termination of this Agreement and without giving effect to the limitations on actions by the Required
Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such
acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on
account of the relevant Obligations which were credit bid, interests, whether as equity, partnership,
limited partnership interests or membership interests, in any such acquisition vehicle and/or debt
instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition
vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition
vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better,
because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations
credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to
the Secured Parties pro rata with their original interest in such Obligations and the equity interests and/or
debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be
cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to
the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such
documents and provide such information regarding the Secured Party (and/or any designee of the
Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as
the Administrative Agent may reasonably request in connection with the formation of any acquisition
vehicle, the formulation or submission of any credit bid or the consummation of the transactions
contemplated by such credit bid.
SECTION 8.09. Certain ERISA Matters. (a) Each Lender (x) represents and
warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date
such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for
the benefit of the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the
Borrower or any Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of the Plan
Asset Regulations) of one or more Benefit Plans with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Commitments or this
Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE
84-14 (a class exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain transactions involving
insurance company general accounts), PTE 90-1 (a class exemption for certain transactions
involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for
certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is applicable with respect to
such Lender’s entrance into, participation in, administration of and performance of the Loans, the
Commitments and this Agreement, and the conditions for exemptive relief thereunder are and
will continue to be satisfied in connection therewith,
(iii) (A) such Lender is an investment fund managed by a “Qualified
Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified
Professional Asset Manager made the investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the
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entrance into, participation in, administration of and performance of the Loans, the Commitments
and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE
84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I
of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true
with respect to a Lender or a Lender has provided another representation, warranty and covenant as
provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents
and warrants, as of the date such Person became a Lender party hereto, 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 Administrative 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 entrance into, participation in,
administration of and performance of the Loans, the Commitments and this Agreement (including in
connection with the reservation or exercise of any rights by the Administrative Agent under this
Agreement, any Loan Document or any documents related hereto or thereto).
SECTION 8.10. Erroneous Payments.
(a) If the Administrative Agent notifies a Lender or Secured Party, or any Person
who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other
recipient, but in any event excluding the Loan Parties and their Affiliates, a “Payment Recipient”) that
the Administrative Agent has determined in its sole discretion that any funds received by such Payment
Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or
otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such
Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a
payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and
collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion
thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and
shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative
Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received
such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two
Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment
(or portion thereof) as to which such a demand was made, in same day funds (in the currency so
received), together with interest thereon in respect of each day from and including the date such
Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount
is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment
Recipient under this clause (a) shall be conclusive, absent manifest error. If a Payment Recipient receives
any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not
receive a corresponding payment notice or payment advice, such payment, prepayment or repayment
shall be presumed to be in error absent written confirmation from the Administrative Agent to the
contrary.
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(b) Each Lender or Secured Party hereby authorizes the Administrative Agent to set
off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any
Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or
Secured Party from any source, against any amount due to the Administrative Agent under immediately
preceding clause (a) or under the indemnification provisions of this Agreement.
(c) For so long as an Erroneous Payment (or portion thereof) has not been returned
by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered
amount, an “Erroneous Payment Return Deficiency”) to the Administrative Agent after demand therefor
in accordance with immediately preceding clause (a), (i) the Administrative Agent may elect, in its sole
discretion on written notice to such Lender or Secured Party, that all rights and claims of such Lender or
Secured Party with respect to the Loans or other Obligations owed to such Person up to the amount of the
corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the
“Corresponding Loan Amount”) shall immediately vest in the Administrative Agent upon such election;
after such election, the Administrative Agent (x) may reflect its ownership interest in Loans in a principal
amount equal to the Corresponding Loan Amount in the Register, and (y) upon five business days’
written notice to such Lender or Secured Party, may sell such Loan (or portion thereof) in respect of the
Corresponding Loan Amount, and upon receipt of the proceeds of such sale, the Erroneous Payment
Return Deficiency owing by such Lender or Secured Party shall be reduced by the net proceeds of the
sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies
and claims against such Lender or Secured Party (and/or against any Payment Recipient that receives
funds on its behalf), and (ii) each party hereto agrees that, except to the extent that the Administrative
Agent has sold such Loan, and irrespective of whether the Administrative Agent may be equitably
subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of
such Lender or Secured Party with respect to the Erroneous Payment Return Deficiency. For the
avoidance of doubt, no vesting or sale pursuant to the foregoing clause (i) will reduce the Commitments
of any Lender and such Commitments shall remain available in accordance with the terms of this
Agreement.
(d) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay,
discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in
each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such
Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower
or any other Loan Party for the purpose of making such Erroneous Payment.
(e) No Payment Recipient shall assert any right or claim to an Erroneous Payment,
and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or
recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the
return of any Erroneous Payment received, including without limitation waiver of any defense based on
“discharge for value” or any similar doctrine.
(f) Each party’s obligations, agreements and waivers under this Section 8.10 shall
survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations
by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment,
satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document,
neither any Loan Party nor any of its respective Affiliates shall have any obligations or liabilities directly
or indirectly arising out of this Section 8.10 in respect of any Erroneous Payment (other than with respect
to acknowledging and consenting to any assignment and/or subrogation rights referenced in Section
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8.10(c), subject to any consent rights set forth in Section 9.04 and other than the Borrower’s and
Holdings’ respective agreements to Section 8.10(d)) (it being understood that this clause (g) shall not
limit any rights the Administrative Agent may have against any Loan Party under any provision of this
Agreement or any other Loan Document other than this Section 8.10).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to paragraph (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, as follows:
(i) if to the Borrower, to it at 460500 North Gulph Road, King of Prussia,
Pennsylvania 19406, Attention: Treasurer (Facsimile No. (610) 992-3259; Telephone No. (610)
337-1000; Email Address: UGI-TREASURY@ugicorp.com) with a copy to 835 Knitting Mills
Way, Wyomissing, PA 19610, Attention: Chief Financial Officer (Facsimile No. (610) 374-4288;
Telephone No. (610) 373-7999; Email Address: adoerries@ugies.com);
(ii) if to the Administrative Agent or the Collateral Agent, to it at 66 Hudson
Boulevard East, 4th floor, New York, New York 10001, Attention: Corporate Trust & Loan
Agency (Facsimile No. 1-847-793-3415; Telephone No. (1-212-525-1529; Email Address:
ctlany.loanagency@us.hsbc.com and ershad.sattar@us.hsbc.com); and
(iii) if to any other Lender, to it at its address set forth in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by facsimile shall be deemed to have been given
when sent (except that, if not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the recipient). Notices delivered
through Approved Electronic Platforms, to the extent provided in paragraph (b) below, shall be effective
as provided in said paragraph (b).
(b) Notices and other communications to the Lenders hereunder may be delivered or
furnished by using Approved Electronic Platform pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to
an Internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or
communication is available and identifying the website address therefor; provided that, for both
clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal
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business hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next business day for the recipient.
(c) Any party hereto may change its address or email address for notices and other
communications hereunder by notice to the other parties hereto.
SECTION 9.02. Waivers; Amendments. (a). (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any
provision of any Loan Document or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver
of any Default or Event of Default, regardless of whether the Administrative Agent or any Lender may
have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as provided in Sections 2.20 and 2.21 with respect to an Incremental
Amendment and a Refinancing Amendment, respectively, and subject to Section 2.14(b) and clauses (c)
and (e) below, neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly
affected thereby (except that only the consent of the Required Lenders shall be necessary to waive any
obligation of the Borrower to pay interest at the rate set forth in Section 2.13(c) during the continuance of
an Event of Default), (iii) postpone the scheduled date of payment of the principal amount of any Loan,
or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without the written consent
of each Lender directly affected thereby, (iv) change Section 2.18(b) or the last sentence of the last
paragraph in Section 7.01 in a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of this Section or the
definition of “Required Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender (it being understood that, solely with the
consent of the parties prescribed by Sections 2.20 and 2.21 to be parties to an Incremental Amendment
and a Refinancing Amendment, respectively, Incremental Term Loans and Refinancing Loans may be
included in the determination of Required Lenders on substantially the same basis as the Loans are
included on the Effective Date) or (vi) release the Borrower or all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guaranty, or all or substantially all of the
Collateral, without the written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document
may be amended (or amended and restated) with the written consent of the Required Lenders, the
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Administrative Agent and the Borrower to each relevant Loan Document (x) to add one or more credit
facilities (in addition to the Incremental Term Loans and the Refinancing Loans pursuant to an
Incremental Amendment and a Refinancing Amendment, respectively) to this Agreement and to permit
extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect
thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Initial
Term Loans, Incremental Term Loans and Refinancing Loans and the accrued interest and fees in respect
thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of
the Required Lenders and Lenders.
(d) If, in connection with any proposed amendment, waiver or consent requiring the
consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required
Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose
consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the
Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided
that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory
to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans
and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and
to become a Lender for all purposes under this Agreement and to assume all obligations of the
Non-Consenting Lender to be terminated as of such date and to comply with the requirements of
clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day
funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to
such Non-Consenting Lender by the Borrower hereunder to and including the date of termination,
including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17,
and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of
such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on
such date rather than sold to the replacement Lender.
(e) If the Administrative Agent and the Borrower acting together identify any
ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or
any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend,
modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or
other defect, and such amendment shall become effective without any further action or consent of any
other party to this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a). (a) The Borrower shall
pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent and their respective Affiliates, including the reasonable fees, charges and disbursements
of one primary counsel for the Administrative Agent, the Collateral Agent and their respective Affiliates
(and one local counsel in each jurisdiction as to which the Administrative Agent or the Collateral Agent
(as applicable) reasonably determines local counsel is appropriate), in connection with the syndication
and distribution (including, without limitation, via the internet or through a service such as IntraLinks) of
the credit facilities provided for herein, the preparation and administration of this Agreement and the
other Loan Documents (including with respect to Collateral matters) or any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all documented out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the documented fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender (provided that the Borrower’s obligations to pay fees
of counsel shall be limited to one counsel for the Administrative Agent, the Collateral Agent and the
Lenders taken as a whole (and one local counsel in each jurisdiction as to which the Administrative
Agent or the Collateral Agent (as applicable) reasonably determines local counsel is appropriate) and,
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solely in the case of any actual or perceived conflict of interest, one additional counsel (and one
additional local counsel in each jurisdiction as to which the Administrative Agent or the Collateral Agent
(as applicable) reasonably determines local counsel is appropriate) to all similarly affected Lenders, in
connection with the enforcement of its rights in connection with this Agreement and any other Loan
Document, including its rights under this Section.
(b) The Borrower shall indemnify the Administrative Agent, the Collateral Agent
and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called
an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or
the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation, arbitration or proceeding relating to any of the foregoing, whether or not
such claim, litigation, investigation, arbitration or proceeding is brought by the Borrower or its respective
equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) arise from a dispute that does not involve any action or omission by the Borrower or
any of its Affiliates and is solely among the Indemnitees (other than any claims against an Indemnitee in
its capacity as Administrative Agent or lead arranger) or (y) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or, pursuant to a claim brought by the Borrower against such Indemnitee,
for breach in bad faith of such Indemnitee’s material obligations hereunder. The Borrower shall not be
liable for any settlement of any claim, litigation, investigation, arbitration or proceeding if such
settlement is effected without its consent (which consent shall not be unreasonably withheld, conditioned
or delayed), but if settled with the Borrower’s written consent or if there is a final judgment in any such
claim, litigation, investigation, arbitration or proceeding, the Borrower agrees to indemnify and hold
harmless each Indemnitee from and against all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel by reason of such settlement or judgment in
accordance with the foregoing. This Section 9.03(b) shall not apply with respect to Taxes other than any
Taxes that represent losses or damages arising from any non-Tax claim.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent or the Collateral Agent (as applicable), such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount (it being understood that the Borrower’s failure to
pay any such amount shall not relieve the Borrower of any default in the payment thereof); provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or the Collateral Agent in its
capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of
information or other materials obtained through telecommunications, electronic or other information
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transmission systems (including the Internet), or (ii) on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than fifteen
(15) days after written demand therefor, including in all cases reasonably detailed invoices relating
thereto.
SECTION 9.04. Successors and Assigns. (a). (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to
the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time
owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(i) (A) the Borrower (provided, that the Borrower shall be deemed to
have consented to any such assignment unless it shall object thereto by written notice to the
Administrative Agent within ten (10) Business Days after having received notice thereof);
provided, further, that no consent of the Borrower shall be required for an assignment to a
Lender, an Affiliate of a Lender (other than an Approved Fund) or, if an Event of Default under
Section 7.01(a), (b), (h), (i) or (j) has occurred and is continuing, any other assignee; and
(B) the Administrative Agent; provided, that (x) no consent of the
Administrative Agent shall be required for an assignment of any Commitment to an
assignee that is a Lender (other than a Defaulting Lender) with a Commitment
immediately prior to giving effect to such assignment, and (y) no consent of the
Administrative Agent shall be required for an assignment of all or any portion of a Term
Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining amount of the
assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment
or Loans 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) shall not be less than $1,000,000 unless each of the Borrower and
the Administrative Agent otherwise consent to a lesser amount, provided that no such
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consent of the Borrower shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this
Agreement, provided that this clause shall not be construed to prohibit the assignment of
a proportionate part of all the assigning Lender’s rights and obligations in respect of one
Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable,
an agreement incorporating an Assignment and Assumption by reference pursuant to an
Approved Electronic Platform as to which the Administrative Agent and the parties to
the Assignment and Assumption are participants, together with a processing and
recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of
the Administrative Agent), such fee to be paid by either the assigning Lender or the
assignee Lender or shared between such Lenders;
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee designates
one or more credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower and its Affiliates and their Related
Parties or their respective securities, subject to Section 9.12) will be made available and
who may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities laws; and
(E) without the prior written consent of the Administrative Agent,
no assignment shall be made to a prospective assignee that bears a relationship to the
Borrower described in Section 108(e)(4) of the Code.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment
and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as a non-fiduciary
agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
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The Register shall be available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(v) Upon its receipt of (x) a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement
incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic
Platform as to which the Administrative Agent and the parties to the Assignment and Assumption
are participants, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register; provided that if either
the assigning Lender or the assignee shall have failed to make any payment required to be made
by it pursuant to 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), the Administrative Agent shall have
no obligation to accept such Assignment and Assumption and record the information therein in
the Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities (a “Participant”), other
than an Ineligible Institution, in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that
(A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations; (C) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement; and
(D) without the prior written consent of the Administrative Agent, no participation shall be sold to a
prospective participant that bears a relationship to the Borrower described in Section 108(e)(4) of the
Code. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section; provided that such Participant (A) shall be subject to the requirements and
limitations therein, including the requirements under Section 2.17(f) (it being understood that the
documentation required under Section 2.17(f) shall be delivered to the participating Lender); (B) agrees
to be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of
this Section; and (C) shall not be entitled to receive any greater payment under Sections 2.15 or 2.17,
with respect to any participation, than its participating Lender would have been entitled to receive, except
to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after
the Participant acquired the applicable participation. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on
which it enters the name and address of each Participant and the principal amounts (and stated interest)
of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the
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Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to
any Person except to the extent that such disclosure is necessary to establish that such Commitment,
Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such
Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the
avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding anything contained in Section 2.18 or this Section 9.04 to the
contrary, any of Borrower or its Subsidiaries may purchase by way of assignment and become an
assignee with respect to Loans at any time and from time to time from Lenders in accordance with
Section 9.04(a) hereof through open-market purchases or Dutch Auction procedures to be mutually
agreed by the Borrower and the Administrative Agent (each, a “Permitted Loan Purchase”); provided,
that, in respect of any Permitted Loan Purchase, (A) no Permitted Loan Purchase shall be made from the
proceeds of any extensions of credit under the Revolving Credit Agreement, (B) upon consummation of
any such Permitted Loan Purchase, the Loans purchased pursuant thereto shall be deemed to be
automatically and immediately cancelled and extinguished in accordance with Section 9.04(f), (C) in
connection with any such Permitted Loan Purchase, any of the Borrower or its Subsidiaries and such
Lender that is the assignor shall execute and deliver to the Administrative Agent a duly completed
Assignment and Assumption (and for the avoidance of doubt, (x) shall make the representations and
warranties set forth in the Assignment and Assumption and (y) shall not be required to execute and
deliver an Assignment and Assumption pursuant to Section 9.04(b)(ii)(C)) and shall otherwise comply
with the conditions to assignments under this Section 9.04 and (D) no Default or Event of Default would
exist immediately after giving effect on a Pro Forma Basis to such Permitted Loan Purchase.
(f) Each Permitted Loan Purchase shall, for purposes of this Agreement be deemed
to be an automatic and immediate cancellation and extinguishment of such Loans and the Borrower shall,
upon consummation of any Permitted Loan Purchase, notify the Administrative Agent that the Register
be updated to record such event as if it were a prepayment of such Loans.
(g) Upon the assignment by any Lender of any Loans pursuant to a Permitted Loan
Purchase, either (i) the applicable assignee shall make a representation to the Lender making such
assignment that it does not possess material non-public information with respect to the Borrower and its
Subsidiaries that has not been disclosed to such Lender or the Lenders generally or (ii) the applicable
assignor shall deliver to the Administrative Agent and the Borrower a customary Big Boy Letter.
(h) The Administrative Agent shall not be responsible or have any liability for, or
have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this
Agreement relating to Disqualified Institutions or Permitted Loan Purchases. Without limiting the
generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or
inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified
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Institution or (y) have any liability with respect to or arising out of any assignment or participation of
Loans, or disclosure of confidential information, to any Disqualified Institution.
SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by any Loan Party in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall be considered to have
been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans, regardless of any investigation made by any such other party or
on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or
knowledge of any Default or Event of Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other
Loan Document is outstanding and unpaid and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Commitments or the termination of this
Agreement or any other Loan Document or any provision hereof or thereof.
SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution. This
Agreement may be executed in counterparts (and by different parties hereto on different counterparts),
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 Administrative Agent 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. Except 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 which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart of a signature page of
this Agreement by e-mailed.pdf or any other electronic means that reproduces an image of the actual
executed signature page shall be effective as delivery of a manually executed counterpart of this
Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or
relating to any document to be signed in connection with this Agreement and the transactions
contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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 case 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 similar state laws based on the Uniform Electronic Transactions Act;
provided that nothing herein shall require the Administrative Agent to accept electronic signatures in any
form or format without its prior written consent.
SECTION 9.07. Severability. Any provision of any Loan Document held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from
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time to time, to the fullest extent permitted by law, to setoff and apply any and all deposits (general or
special, time or demand, provisional or final and in whatever currency denominated) at any time held,
and other obligations at any time owing, by such Lender or any such Affiliate, to or for the credit or the
account of the Borrower or any Subsidiary Guarantor against any and all of the Obligations now or
hereafter existing under this Agreement or any other Loan Document to such Lender or their respective
Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this
Agreement or any other Loan Document and although such obligations may be contingent or unmatured
or are owed to a branch office or Affiliate of such Lender different from 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, (x) all amounts so setoff shall be paid over immediately to
the Administrative Agent for further application in accordance with the provisions of Section 2.22 and,
pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed
held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender
shall provide promptly to the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of
each Lender and their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender or its Affiliates may have. Each Lender 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 affect the validity of such setoff and application.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a).
(a) This Agreement and the other Loan Documents shall be construed in accordance with and governed
by the laws of the State of New York.
(b) Each of the Lenders and the Administrative Agent hereby irrevocably and
unconditionally agrees that, notwithstanding the governing law provisions of any applicable Loan
Document, any claims brought against the Administrative Agent by any Lender relating to this
Agreement, any other Loan Document or the consummation or administration of the transactions
contemplated hereby or thereby shall be construed in accordance with and governed by the law of the
State of New York.
(c) Each of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern
District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter
jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement
or any other Loan Document or the transactions relating hereto or thereto, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may (and any such claims, cross-claims
or third party claims brought against the Administrative Agent or any of its Related Parties may only) be
heard and determined in such Federal (to the extent permitted by law) or New York State court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or in any other Loan Document shall affect any right that the Administrative
Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
(d) The Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other
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Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(e) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that Information may
be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors who are directly involved with the Transactions (it being understood that
the Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by any
Governmental Authority (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies under this Agreement or any other Loan Document or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those
of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) on a
confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or
the credit facilities provided for herein or (ii) the CUSIP Service Bureau or any similar agency in
connection with the issuance and monitoring of identification numbers with respect to the credit facilities
provided for herein, (h) with the consent of the Borrower, (i) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source other than the Borrower or
(j) to any actual or potential credit provider, investor, or other entity in connection with a financing or
securitization or proposed financing or securitization of all or a part of any amounts payable to or for the
benefit of any Lender or its Affiliates under the Loan Documents so long the recipient agrees to keep
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such information confidential in a manner materially consistent with this Section 9.12. For the purposes
of this Section, “Information” means all information received from the Borrower relating to the Borrower
or its business, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower and other than information
pertaining to this Agreement routinely provided by arrangers to data service providers, including league
table providers, that serve the lending industry; provided that, in the case of information received from
the Borrower after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. Material Non-Public Information.
(a) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS
DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY
INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER
AND ITS AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL
HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
(b) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND
AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT
PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION ABOUT THE BORROWER, THE LOAN PARTIES AND THEIR RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER
REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO
MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) The Borrower and each Lender acknowledge that certain of the Lenders may be
Public Lenders and, if documents or notices required to be delivered pursuant to Section 5.01 or
otherwise are being distributed through the Approved Electronic Platform, any document or notice that
the Borrower has indicated contains non-public information shall not be posted on that portion of the
Approved Electronic Platform designated for Public Lenders. The Borrower agrees to clearly designate
all information provided to the Administrative Agent by or on behalf of the Loan Parties which is
suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or
notice delivered pursuant to Section 5.01 or otherwise contains non-public information, the
Administrative Agent reserves the right to post such document or notice solely on that portion of the
Approved Electronic Platform designated for Lenders who wish to receive material non-public
information with respect to the Borrower, its Subsidiaries and their respective securities.
SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
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(the “Patriot Act”) hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it
is required to obtain, verify and record information that identifies such Loan Party, which information
includes the name, address and tax identification number of such Loan Party and other information that
will allow such Lender to identify such Loan Party in accordance with the Patriot Act.
SECTION 9.15. Releases of Subsidiary Guarantors and Collateral.
(a) A Subsidiary Guarantor shall automatically be released from its obligations
under the Subsidiary Guaranty and the other Loan Documents to which it is a party (including its
obligations to pledge and grant any Collateral owned by it pursuant to the Collateral Documents) and any
pledge of Equity Interests in such Subsidiary Guarantor and the Collateral owned by such Subsidiary
Guarantor, in each case pursuant to the Collateral Documents, shall automatically be released, upon the
consummation of any transaction permitted by this Agreement as a result of which such Subsidiary
Guarantor ceases to be a Subsidiary or a Restricted Subsidiary; provided that, if so required by this
Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent
shall not have provided otherwise. In connection with any termination or release pursuant to this
Section, the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute
and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall
reasonably request to evidence such termination or release. Any execution and delivery of documents
pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(b) Further, the Administrative Agent may (and is hereby irrevocably authorized by
each Lender to), upon the request of the Borrower, release any Subsidiary Guarantor from its obligations
under the Subsidiary Guaranty and the other Loan Documents to which it is a party (including its
obligations to pledge and grant any Collateral owned by it pursuant to the Collateral Documents) if such
Subsidiary Guarantor is no longer a Material Domestic Subsidiary or a Restricted Subsidiary.
(c) At such time as the principal and interest on the Loans, the fees, expenses and
other amounts payable under the Loan Documents and the other Obligations (other than other
Obligations expressly stated to survive such payment and termination) shall have been paid in full in cash
and the Commitments shall have been terminated, the Subsidiary Guaranty and all obligations (other than
those expressly stated to survive such termination) of each Subsidiary Guarantor thereunder shall
automatically terminate, all without delivery of any instrument or performance of any act by any Person.
(d) Notwithstanding anything to the contrary in any Loan Document, the Collateral
and any other collateral security for the Obligations shall automatically be released, and the
Administrative Agent shall direct the Collateral Agent to release such Collateral or other collateral
security, from any security interest or Lien created by the Loan Documents (i) upon the Disposition of
such Collateral to any Person other than a Loan Party pursuant to a transaction not restricted by this
Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited hereby)
(and the Administrative Agent may rely conclusively on a certificate to that effect provided to it by any
Loan Party upon its reasonable request without further inquiry), (ii) if the release of such Lien is
approved, authorized or ratified in writing by the Required Lenders (except in the case of a release of all
or substantially all of the Collateral (other than in connection with a transaction not restricted by Sections
6.03), which release shall require the written consent of all Lenders), (iii) if the property subject to such
Lien is owned by a Subsidiary Guarantor, upon release of such Subsidiary Guarantor from its obligations
under its Subsidiary Guaranty pursuant to this Section 9.15, or (iv) as expressly provided in any
Collateral Document; and the Administrative Agent shall then deliver to the Loan Parties all Collateral
and any other collateral held under the Loan Documents and related documents in the custody or
possession of such Person and, if reasonably requested by any Loan Party, shall execute and deliver (to
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the extent applicable) to such Loan Party for filing in each office in which any financing statement
relative to such collateral, or any part thereof, shall have been filed, a termination statement under the
Uniform Commercial Code or like statute in any other jurisdiction releasing or evidencing the release of
the Administrative Agent’s interest therein, and such other documents and instruments as any Loan Party
may reasonably request at the cost and expense of the Borrower. The Administrative Agent shall not be
liable for any action taken by it at the reasonable request of a Loan Party pursuant to this Section 9.15(d).
SECTION 9.16. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate
of interest payable in respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that
would have been payable in respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans
or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
SECTION 9.17. No Advisory or Fiduciary Responsibility. (a) The Borrower
acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that no Credit Party will
have any obligations except those obligations expressly set forth herein and in the other Loan Documents
and each Credit Party is acting solely in the capacity of an arm’s length contractual counterparty to the
Borrower with respect to the Loan Documents and the transactions contemplated herein and therein and
not as a financial advisor or a fiduciary to, or an agent of, the Borrower or any other person. The
Borrower agrees that it will not assert any claim against any Credit Party based on an alleged breach of
fiduciary duty by such Credit Party in connection with this Agreement and the transactions contemplated
hereby. Additionally, the Borrower acknowledges and agrees that no Credit Party is advising the
Borrower as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction.
The Borrower shall consult with its own advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the transactions contemplated herein or in the
other Loan Documents, and the Credit Parties shall have no responsibility or liability to the Borrower
with respect thereto.
(b) The Borrower further acknowledges and agrees, and acknowledges its
Subsidiaries’ understanding, that each Credit Party, together with its Affiliates, is a full service securities
or banking firm engaged in securities trading and brokerage activities as well as providing investment
banking and other financial services. In the ordinary course of business, any Credit Party may provide
investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and
the accounts of customers, equity, debt and other securities and financial instruments (including bank
loans and other obligations) of, the Borrower and other companies with which it may have commercial or
other relationships. With respect to any securities and/or financial instruments so held by any Credit
Party or any of its customers, all rights in respect of such securities and financial instruments, including
any voting rights, will be exercised by the holder of the rights, in its sole discretion.
(c) In addition, the Borrower acknowledges and agrees, and acknowledges its
Subsidiaries’ understanding, that each Credit Party and its affiliates may be providing debt financing,
equity capital or other services (including financial advisory services) to other companies in respect of
which the Borrower or its Subsidiaries may have conflicting interests regarding the transactions
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#101109459v1101109459v9
described herein and otherwise. No Credit Party will use confidential information obtained from the
Borrower by virtue of the transactions contemplated by the Loan Documents or its other relationships
with the Borrower in connection with the performance by such Credit Party of services for other
companies, and no Credit Party will furnish any such information to other companies. The Borrower also
acknowledges that no Credit Party has any obligation to use in connection with the transactions
contemplated by the Loan Documents, or to furnish to the Borrower, confidential information obtained
from other companies.
SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial
Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any liability
of any Affected Financial Institution arising under any Loan Document may be subject to the
Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to,
and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable
Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party
hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such Affected Financial Institution, its parent undertaking, or a
bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to any
such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the
exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
SECTION 9.19. Acknowledgement Regarding Any Support QFCs. To the extent that
the Loan Documents provide support, through a guarantee or otherwise, for any Swap Agreement or any
other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a
“Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of
the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the
Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations
promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and
QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and
any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of
the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered
Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such
Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under
such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported
QFC and such QFC Credit Support) from such Covered Party will be effective to the same extent as the
transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such
QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws
of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate
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#101109459v1101109459v9
of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default
Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit
Support that may be exercised against such Covered Party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the
Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the
United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of
the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party
with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 9.19, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in
accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12
C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in
accordance with, 12 U.S.C. 5390(c)(8)(D).
SECTION 9.20.Intercreditor Agreements. The Lenders hereby authorize the
Administrative Agent to enter into the First Lien/First Lien Intercreditor Agreement and any other
intercreditor agreement or arrangement permitted under this Agreement and the Lenders acknowledge
that any such intercreditor agreement shall be binding upon the Lenders. Notwithstanding anything
herein to the contrary, (i) the Liens granted to the Administrative Agent pursuant to the Collateral
Documents are expressly subject to each Intercreditor Agreement (if in effect) and any other intercreditor
agreement entered into pursuant hereto and (ii) the exercise of any right or remedy by the Administrative
Agent hereunder or under each Intercreditor Agreement (if in effect) and any other intercreditor
agreement entered into pursuant hereto is subject to the limitations and provisions of the Intercreditor
Agreement (if in effect) and any other intercreditor agreement entered into pursuant hereto. In the event
of any conflict between the terms of any Intercreditor Agreement (if in effect) or any other such
intercreditor agreement and the terms of this Agreement, the terms of such Intercreditor Agreement (if in
effect) or such other intercreditor agreement, as applicable, shall govern.
[Signature Intentionally Omitted]
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#101109459v1101109459v9
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Document and Entity Information
Jun. 30, 2026
Document and Entity Information [Abstract]
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Jun. 30, 2026
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UGI CORP /PA/
Entity Incorporation, State or Country Code
PA
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1-11071
Entity Tax Identification Number
23-2668356
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500 North Gulph Road
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PA
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610
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