CREDIT AND SECURITY AGREEMENT Dated as of March 27, 2009 by and among

Exhibit 10.1

EXECUTION COPY

CREDIT AND SECURITY AGREEMENT

Dated as of March 27, 2009

by and among

SUNGARD AR FINANCING LLC,

as Borrower,

THE FINANCIAL INSTITUTIONS SIGNATORY HERETO FROM TIME TO TIME,

as Lenders,

and

GENERAL ELECTRIC CAPITAL CORPORATION,

as Swing Line Lender and as Administrative Agent

 

GE CAPITAL MARKETS, INC.

as Sole Lead Arranger and Sole Bookrunner

 

Credit and Security Agreement

TABLE OF CONTENTS

 

Credit and Security Agreement

i

 

Credit and Security Agreement

ii

Credit and Security Agreement

iii

THIS CREDIT AND SECURITY AGREEMENT (as amended, restated, supplemented or otherwise modified and in effect from time to time, the “ Agreement ”) is entered into as of March 27, 2009 by and among SUNGARD AR FINANCING LLC, a Delaware limited liability company (the “ Borrower ”), the financial institutions signatory hereto from time to time as lenders (the “ Lenders ”), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as a Lender, as swing line lender (in such capacity, the “ Swing Line Lender ”) and as administrative agent for the Lenders hereunder (in such capacity, the “ Administrative Agent ”).

RECITALS

A. The Borrower has been formed for the purpose of purchasing Receivables.

B. The Borrower intends to fund its purchases of the Receivables, in part, by borrowing Advances and pledging all of its right, title and interest in and to the Receivables as security therefor, and, subject to the terms and conditions hereof, the Lenders intend to make such Advances, from time to time, as described herein.

C. The Administrative Agent has been requested and is willing to act as administrative agent on behalf of each of the Lenders in connection with the making and financing of such Advances.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS AND INTERPRETATION

Section 1.01. Definitions . Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in Annex X .

Section 1.02. Rules of Construction . For purposes of this Agreement, the rules of construction set forth in Annex X shall govern. All Appendices hereto, or expressly identified to this Agreement, are incorporated herein by reference and, taken together with this Agreement, shall constitute but a single agreement.

ARTICLE II.

AMOUNTS AND TERMS OF ADVANCES

Section 2.01. Advances .

(a) Term Loan; Revolving Credit Advances .

(i) On the Initial Funding Date, subject to the terms and conditions hereof, each Lender severally agrees to make a term loan (collectively, the “ Term Loan ”) to the Borrower in an amount equal to such Lender’s Term Loan Commitment. No amounts paid or prepaid with respect to the Term Loan may be reborrowed. The Borrower shall execute and deliver to each

 

Credit and Security Agreement

Lender (other than the Swing Line Lender) that makes a request therefor, a note to evidence the amount of the Term Loan made by such Lender. Each such note (each, a “ Term Loan Note ”) shall be (x) in the principal amount of the amount of the Term Loan made or held by such Lender, (y) dated the date of issuance thereof, and (z) substantially in the form of Exhibit 2.01(a)(i) . Each Term Loan Note shall represent the obligation of the Borrower to pay the amount of the related Lender’s Pro Rata Share of the outstanding Term Loan, together with interest thereon as prescribed in Section 2.06 .

(ii) In addition, from and after the Effective Date and until the Commitment Termination Date and subject to the terms and conditions hereof, each Lender severally agrees to make its Pro Rata Share of revolving advances (each such advance hereunder, a “ Revolving Credit Advance ”) to the Borrower from time to time. Immediately prior to and after giving effect to any Advance under Section 2.03(b) , the Outstanding Principal Amount of Revolving Credit Advances shall not exceed the Maximum Revolving Commitment Amount and the Outstanding Principal Amount of Revolving Credit Advances made by each Lender (and the obligations of such Lender under Section 2.01(b)(ii) and (iii) ) shall not exceed such Lender’s Revolving Commitment. Except to the extent provided in Section 2.06(c) , no Lender shall make any Revolving Credit Advances if, after giving effect thereto, a Funding Excess would exist. The Borrower may from time to time borrow, repay and reborrow Revolving Credit Advances hereunder on the terms and conditions set forth herein. The Borrower shall execute and deliver to each Lender (other than the Swing Line Lender) that makes a request therefor, a note (each, a “ Revolving Note ”) to evidence the Revolving Credit Advances which may be made hereunder from time to time by such Lender. Each such note shall be (x) in the principal amount of the Revolving Commitment of the applicable Lender, (y) dated the date of issuance thereof, and (z) substantially in the form of Exhibit 2.01(a)(ii) . Each Revolving Note shall represent the obligation of the Borrower to pay the amount of each Lender’s Revolving Commitment or, if less, such Lender’s Pro Rata Share of the aggregate Outstanding Principal Amount of all outstanding Revolving Credit Advances made to the Borrower, together with interest thereon as prescribed in Section 2.06 .

(b) Swing Line Advances . From and after the Effective Date and until the Commitment Termination Date and subject to the terms and conditions hereof, the Swing Line Lender agrees to make advances (each such advance hereunder, a “ Swing Line Advance ”) to the Borrower from time to time; provided that if the Swing Line Lender believes in good faith and within its commercially reasonable credit judgment that one or more Lenders is or will be a Non-Funding Lender, the Swing Line Lender may, in its sole discretion after consultation with the Borrower and the Servicer, elect not to make the portion of a Swing Line Advance equal to the Pro Rata Share of such Lender or Lenders of the requested amount of the Swing Line Advance unless the Swing Line Lender shall have received Adequate Security with respect to such portion of the requested Swing Line Advance. Except to the extent provided in Section 2.06(c) , the Swing Line Lender shall not make any Swing Line Advance if, after giving effect thereto, a Funding Excess would exist. The aggregate amount of the Swing Line Loan shall not at any time exceed the Swing Line Commitment. Under no circumstances shall the Swing Line Lender make a Swing Line Advance if, after giving effect thereto, the aggregate amount of the Swing Line Loan would exceed the Swing Line Commitment. The Borrower may from time to time borrow, repay and reborrow Swing Line Advances hereunder on the terms and conditions set forth herein. Unless the Swing Line Lender has (i) received prior written notice from any Lender, the Servicer or the Borrower instructing it not to make a Swing Line Advance because of the failure of any condition precedent set forth in Section 3.01 or 3.02 to be satisfied or (ii) actual knowledge of the failure of any condition precedent set forth in Section 3.01 or 3.02 to be satisfied, the Swing Line Lender shall, notwithstanding the failure of any such condition precedent to be satisfied, be entitled to fund such Swing Line Advance, and to have the Lenders make Revolving Credit Advances in accordance with Section 2.01(b)(ii) or purchase participating interests in accordance with Section 2.01(b)(iii) .

 

Credit and Security Agreement

2

(i) If requested by the Swing Line Lender, the Borrower shall execute and deliver to the Swing Line Lender a note to evidence the Swing Line Loan. Such note shall be in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit 2.01(b)(i) (the “ Swing Line Note ”). The Swing Line Note shall represent the obligation of the Borrower to pay the Swing Line Loan, together with interest thereon as prescribed in Section 2.06 .

(ii) The Swing Line Lender, at any time and from time to time not less than two (2) Business Days after making any Swing Line Advance, shall on behalf of the Borrower (and the Borrower hereby irrevocably authorizes the Swing Line Lender to so act on its behalf) request each Lender (excluding the Swing Line Lender) to make a Revolving Credit Advance to the Borrower in an amount equal to such Lender’s Pro Rata Share of the principal amount of the Swing Line Loan (the “ Refunded Swing Line Loan ”) outstanding on the date such notice is given. Unless the Commitment Termination Date has occurred and regardless of whether the conditions precedent set forth in Sections 3.01 and 3.02 to the making of an Advance are then satisfied, each Lender shall disburse directly to the Administrative Agent, its Pro Rata Share of a Revolving Credit Advance on behalf of the Swing Line Lender, prior to 2:00 p.m. (New York time), in immediately available funds on the Business Day next succeeding the date on which such notice is given.

(iii) If, prior to refunding a Swing Line Loan with a Revolving Credit Advance pursuant to Section 2.01(b)(ii) , the Commitment Termination Date or one of the events described in Sections 8.01(d) or (e)  has occurred, then, subject to the provisions of Section 2.01(b)(iv) below, each Lender shall, on the date such Revolving Credit Advance was to have been made for the benefit of the Borrower, purchase from the Swing Line Lender an undivided participation interest in the Swing Line Loan in an amount equal to its Pro Rata Share of such Swing Line Loan. Upon request by the Swing Line Lender, each Lender shall promptly transfer to the Swing Line Lender, in immediately available funds, the amount of its participation interest.

(iv) Each Lender’s obligation to make Revolving Credit Advances in accordance with Section 2.01(b)(ii) and to purchase participation interests in accordance with Section 2.01(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of any Termination Event or Incipient Termination Event; (C) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement at any time; or (D) other than any Swing Line Advance that is made in an amount greater than the Swing Line Availability at such time (unless such Swing Line Advance is made to charge or otherwise pay for amounts described in Section 2.06 ), other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any Lender does not make available to the Administrative Agent or the Swing Line Lender, as applicable, the amount required pursuant to Sections 2.01(b)(ii) or (b)(iii) , as the case may be, the Swing Line Lender shall be entitled, in its discretion, to (x) to recover such amount on demand from such Lender, together with interest thereon for each day from the date of non-payment until such amount is paid in full at the Federal Funds Rate for the first two Business Days and at the Index Rate thereafter and (y) apply, to the extent and in satisfaction of such amount, any collateral provided by or on behalf of such Lender as Adequate Security.

 

Credit and Security Agreement

3

(v) Notwithstanding anything herein to the contrary, if the Swing Line Lender elects not to make the portion of a Swing Line Advance in respect of any Lender (a “ Specified Lender ”) pursuant to the proviso to the first sentence of Section 2.01(b) , each other Lender’s obligation to make Revolving Credit Advances in accordance with Section 2.01(b)(ii) and to purchase participation interests in accordance with Section 2.01(b)(iii) in respect of such Swing Line Advance shall be calculated ratably based on the respective Revolving Commitments of the Lenders (other than, for the avoidance of doubt, any Lender that is a Specified Lender).

(c) The Outstanding Principal Amount of Advances and all other accrued and unpaid Borrower Obligations shall be immediately due and payable in full in immediately available funds on the Facility Maturity Date.

(d) Notwithstanding anything herein to the contrary, each Lender’s pro rata share of (x) the outstanding Term Loan and (y) the Maximum Revolving Credit Amount shall at all times be the same.

Section 2.02. Changes in Maximum Revolving Commitment Amount .

(a) The Borrower may reduce the Revolving Loan Commitment Amount permanently; provided , that (i) the Borrower shall give three days’ prior written notice of any such reduction to the Administrative Agent substantially in the form of Exhibit 2.02(a) (each such notice, a “ Commitment Reduction Notice ”), (ii) any partial reduction of the Maximum Revolving Commitment Amount shall be in a minimum amount of $10,000,000 or an integral multiple thereof and (iii) no such partial reduction shall reduce the Maximum Revolving Commitment Amount below the Outstanding Principal Amount of all Revolving Credit Advances and Swing Line Advances at such time (after giving effect to any concurrent prepayment of Advances).

(b) The Borrower may, at any time, on at least three days’ prior written notice by the Borrower to the Administrative Agent, irrevocably terminate the Maximum Revolving Commitment Amount; provided , that (i) such notice of termination shall be substantially in the form of Exhibit 2.02(b) (the “ Commitment Termination Notice ”) and (ii) the Borrower shall make all payments required by Section 2.03(g) at the time and in the manner specified therein. Upon such termination, the Borrower’s right to request that (1) any Lender make Advances or (2) the Swing Line Lender make Swing Line Advances hereunder, shall in each case simultaneously terminate and the Commitment Termination Date shall automatically occur.

(c) Each written notice required to be delivered pursuant to Sections 2.02(a) and (b)  shall be irrevocable and shall be effective (i) on the day of receipt if received by the Administrative Agent and the Lenders not later than 4:00 p.m. (New York time) on any Business Day and (ii) on the immediately succeeding Business Day if received by the Administrative Agent and the Lenders after such time on such Business Day or if any such notice is received on a day other than a Business Day (regardless of the time of day such notice is received). Each such notice of termination or reduction shall specify, respectively, the amount of, or the amount of the proposed reduction in, the Maximum Revolving Commitment Amount.

(d) If the Maximum Revolving Commitment Amount is greater than zero, any repayment of the Term Loan at any time in accordance with Section 2.03(g) shall result in a permanent reduction of the Maximum Revolving Commitment Amount in an amount equal to 50% of such repayment of the Term Loan.

 

Credit and Security Agreement

4

(e) Any reduction in the Maximum Revolving Commitment Amount hereunder shall result in (i) a reduction in each Lender’s Revolving Commitment in an amount equal to such Lender’s Pro Rata Share of the amount by which the Maximum Revolving Commitment Amount is being reduced and (ii) a proportional reduction in the Swing Line Commitment; provided , however , that no such partial reduction shall reduce the Swing Line Commitment below the aggregate amount of the Swing Line Loan.

Section 2.03. Procedures for Making Advances .

(a) Borrowing Requests . Except as provided in Sections 2.06(c) , each Borrowing shall be made upon notice by the Borrower to the Administrative Agent in the manner provided herein. Any such notice must be given in writing so that it is received no later than (1) in the case of any Borrowing of Swing Line Advances, 12:00 noon (New York time) on the Business Day of the proposed Advance Date set forth therein and (2) in the case of any Borrowing of Revolving Credit Advances, 12:00 noon (New York time) on the Business Day prior to the Business Day of the proposed Advance Date set forth therein. Each such notice (a “ Borrowing Request ”) shall (i) be substantially in the form of Exhibit 2.03(a) , (ii) be irrevocable and (iii) specify the amount of the requested Borrowing (which shall be in a minimum amount of $1,000,000) and the proposed Advance Date (which shall be a Business Day), and shall include such other information as may be reasonably required by the Lenders and the Administrative Agent; provided ; that no such notice shall be required for the Borrowing on the Initial Funding Date of (x) the Term Loan or (y) the initial Swing Line Advance or initial Revolving Credit Advance hereunder. Unless a LIBOR Rate Disruption Event shall have occurred, each Advance shall be a LIBOR Rate Advance and, for the avoidance of doubt, LIBOR Rate Advances may be requested for any Advance Date. Notwithstanding anything herein to the contrary, if the Borrower requests any Borrowing in a principal amount that is less than or equal to the Swing Line Availability as of the date such Borrowing Request is delivered, such requested Borrowing shall initially be funded as a Swing Line Advance (until such Swing Line Advance is refunded in accordance with Section 2.01(b)) ; provided , that if the Swing Line Lender has elected (or will elect) not to make any portion of a Swing Line Advance pursuant to the proviso to the first sentence of Section 2.01(b) , the Borrower may request that a Borrowing instead be funded as a Revolving Credit Advance.

(b) Advances; Payments .

(i)(A) The Administrative Agent shall, promptly after receipt of a Borrowing Request delivered in accordance with Section 2.03(a) and in any event prior to 2:00 p.m. (New York time) on the date such Borrowing Request is deemed received, by telecopy, telephone or other similar form of communication notify the Swing Line Lender or the Lenders, as applicable, of its receipt of a Borrowing Request relating to a request for Swing Line Advances or Revolving Credit Advances, as applicable, and (B) the Swing Line Lender or the Lenders, as applicable, shall make the amount of such Swing Line Advance available to the Administrative Agent in same day funds by wire transfer to the Administrative Agent’s account as set forth in Annex W not later than 3:00 p.m. (New York time) on the requested Advance Date. After receipt of such wire transfers (or, in the Administrative Agent’s sole discretion in accordance with Section 2.03(c) , before receipt of such wire transfers), subject to the terms hereof (including, without limitation, the satisfaction of the conditions precedent set forth in Section 3.02) , the Administrative Agent shall make available to the account designated by the Borrower on the Advance Date therefor, the lesser of (x) the amount of the requested Borrowing and (y) the Funding Availability. All payments by each Lender under this Section 2.03(b)(i) shall be made without setoff, counterclaim or deduction of any kind.

(ii) On each Settlement Date, the Administrative Agent will advise each Lender (other than the Swing Line Lender) by telephone or telecopy of the amount of such

 

Credit and Security Agreement

5

Lender’s Pro Rata Share of principal, interest and Fees (to the extent payable to all Lenders) paid for the benefit of Lenders with respect to each Advance. Provided that such Lender has made all payments required to be made by it and purchased all participations required to be purchased by it under this Agreement and the other Transaction Documents as of such Settlement Date, the Administrative Agent will pay to each Lender such Lender’s Pro Rata Share of principal, interest and Fees (to the extent payable to all Lenders) with respect to each applicable Advance, paid by the Borrower since the previous Settlement Date for the benefit of that Lender. Such payments shall be made by wire transfer to such Lender’s account (as specified by such Lender in Annex W or the applicable Assignment Agreement) not later than 3:00 p.m. (New York time) on each Settlement Date.

(iii) On each Settlement Date, the Administrative Agent will advise the Swing Line Lender of the amount of principal, interest and Fees paid for the benefit of the Swing Line Lender with respect to the Swing Line Loan. The Administrative Agent will pay to the Swing Line Lender the amount of principal, interest and Fees paid by the Borrower since the previous Settlement Date for the benefit of the Swing Line Lender. Such payments shall be made by wire transfer or by book balance to the Swing Line Lender’s account (as specified by the Swing Line Lender in Annex W or the applicable Assignment Agreement) not later than 3:00 p.m. (New York time) on each Settlement Date.

(c) Availability of Lenders’ Advances . The Administrative Agent may assume that each Lender will make its Pro Rata Share of each Borrowing of Advances available to the Administrative Agent on each Advance Date. If the Administrative Agent has made available to the Borrower such Lender’s Pro Rata Share of any such Borrowing but such Pro Rata Share is not, in fact, paid to the Administrative Agent by such Lender when due, the Administrative Agent will be entitled to recover such amount on demand from (x) such Lender without set-off, counterclaim or deduction of any kind and (y) any collateral provided as Adequate Security. If any Lender fails to pay the amount of its Pro Rata Share forthwith upon the Administrative Agent’s demand, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately repay such amount to the Administrative Agent. Nothing in this Section 2.03(c) or elsewhere in this Agreement or the other Transaction Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Term Loan Commitment or Revolving Commitment hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder. To the extent that the Administrative Agent advances funds to the Borrower on behalf of any Lender and is not reimbursed therefor on the same Business Day as such Revolving Credit Advance is made, the Administrative Agent shall be entitled to retain for its account all interest accrued on such Revolving Credit Advance from the date of such Revolving Credit Advance to the date such Revolving Credit Advance is reimbursed by the applicable Lender.

(d) Return of Payments .

(i) If the Administrative Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by the Administrative Agent from the Borrower and such related payment is not received by the Administrative Agent, then the Administrative Agent will be entitled to recover such amount from (x) such Lender on demand without set-off, counterclaim or deduction of any kind (y) any collateral provided as Adequate Security.

(ii) If at any time any amount received by the Administrative Agent under this Agreement must be returned to the Borrower or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement

 

Credit and Security Agreement

6

or any other Transaction Document, the Administrative Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to the Administrative Agent (or the Administrative Agent may apply any Adequate Security) on demand any portion of such amount that the Administrative Agent has distributed to such Lender, together with interest at such rate, if any, as the Administrative Agent is required to pay to the Borrower or such other Person, without set-off, counterclaim or deduction of any kind.

(e) Non-Funding Lenders . The failure of any Non-Funding Lender to make any Revolving Credit Advance to be made by it on the date specified therefor shall not relieve any other Lender (each such other Lender, an “ Other Lender ”) of its obligations to make the Revolving Credit Advance to be made by it, but neither any Other Lender nor the Administrative Agent shall be responsible for the failure of any Non-Funding Lender to make an Advance to be made by such Non-Funding Lender. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Transaction Document or constitute a “ Lender ” (or be included in the calculation of “ Requisite Lenders ” or “ Required Remedies Lenders ” hereunder) for any voting or consent rights under or with respect to any Transaction Document unless and until such Non-Funding Lender shall cease to be a Non-Funding Lender as defined in Annex X .

(f) Actions in Concert . Anything in this Agreement to the contrary notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or enforce its rights arising out of this Agreement or the Notes (other than any rights of set-off, which are subject to the provisions of Section 11.07 hereof) without first obtaining the prior written consent of the Administrative Agent or the Requisite Lenders (which consent shall not be unreasonably withheld or delayed), it being the intent of the Lenders that any such action to protect or enforce rights under this Agreement, or the Notes shall, subject to any provision herein requiring that each Lender consent to a particular action, be taken in concert and at the direction or with the consent of the Administrative Agent or the Requisite Lenders (which consent shall not be unreasonably withheld or delayed).

(g) Principal Repayments . The Borrower may at any time repay outstanding Advances hereunder; provided that (i) the Borrower shall give not less than one Business Day’s prior written notice of any such repayment to the Administrative Agent substantially in the form of Exhibit 2.03(g) (each such notice, a “ Repayment Notice ”), (ii) each such notice shall be irrevocable, (iii) each such notice shall specify the amount of the requested repayment and the proposed date of such repayment (which shall be a Business Day), (iv) any such repayment shall be applied first to the Swing Line Loan until the Outstanding Principal Amount thereof has been reduced to zero, second, pro rata to the Lenders, to the outstanding Revolving Credit Advances until the Outstanding Principal Amount thereof has been reduced to zero and third, pro rata to the Lenders, to the outstanding balance of the Term Loan and (v) any such repayment must be accompanied by payment of (A) all interest accrued and unpaid on the portion of the outstanding principal balance of the Advances to be repaid through but excluding the date of such repayment and (B) the amounts required to be paid in accordance with Section 2.16 , if any. Any such notice of repayment must be received by the Administrative Agent no later than 2:00 p.m. (New York time) on the Business Day immediately preceding the date of the proposed repayment; provided , further , that the foregoing requirements shall not apply to repayment of the outstanding principal amount of Advances as a result of the application of Collections pursuant to Section 2.08 .

Section 2.04. Pledge and Release of Transferred Receivables .

(a) Pledge . The Borrower shall indicate in its Records that the Transferred Receivables have been pledged hereunder and that the Administrative Agent has a lien on and security interest in all such Transferred Receivables for the benefit of the Secured Parties. The Borrower shall, and shall cause the Servicer to, hold all Contracts and other documents relating to such Transferred Receivables in trust and in a custodial capacity for the benefit of the Administrative Agent on behalf of the Secured Parties in accordance with their interests hereunder.

 

Credit and Security Agreement

7

(b) Repurchases of Transferred Receivables .

(i) If any Seller is required to repurchase Transferred Receivables from the Borrower pursuant to the Receivables Sale Agreement, upon payment by the applicable Seller to a Collection Account of the applicable repurchase price thereof (which repurchase price shall not be less than an amount equal to the Billed Amount of such Transferred Receivable minus the sum of Collections received in respect thereof), the Administrative Agent on behalf of the Secured Parties shall release the liens on and security interests in the Transferred Receivables being so repurchased.

(ii) If any Seller (or any division of any Seller) is to be merged or consolidated with (or sold or otherwise transferred to) any Person that is neither a Seller nor an Affiliate of any Seller (any such transaction, a “ Seller Disposition ”) and the related Seller determines in its commercially reasonable judgment that it is impracticable to consummate such Seller Disposition unless all Transferred Receivables originated by such Seller (or related division) are also transferred by such Seller (or, in the case of any merger or consolidation, are owned by such Seller at the time of such merger or consolidation) in connection with the related Seller Disposition, the Borrower may transfer all (and not less than all) Transferred Receivables originated by such Seller (or division), in any case, without recourse, representation, warranty or covenant of any kind, to such Seller for a repurchase price equal to the Billed Amount of such Transferred Receivable minus the sum of Collections received in respect thereof but which may be paid, subject to the conditions set forth below and of the “Subordinated Note” executed in connection with the Receivables Sale Agreement, by a reduction in the outstanding balance of the related “ Subordinated Loans ” (as defined in the Receivables Sale Agreement) owing to the related Seller), and the Administrative Agent on behalf of the Secured Parties shall release the liens on and security interests in the Transferred Receivables being so repurchased if the following conditions are satisfied:

(A) after giving effect to such transfer and release, there shall not exist any Termination Event or Incipient Termination Event (including, without limitation, any Incipient Termination Event arising because of the occurrence of a Funding Excess);

(B) at least five (5) Business Days prior to any such transfer and release, the Borrower shall have delivered, true, correct and complete copies of all documents to be executed or delivered in connection with the repurchase of the Transferred Receivables by the applicable Seller, all of which shall be reasonably acceptable to the Administrative Agent (it being understood that the Borrower shall not sign or be bound by any agreements in connection with a Seller Disposition other than an instrument or assignment without recourse, representation, warranty or covenant by the Borrower);

(C) at least five (5) Business Days prior to any such transfer and release, the Borrower shall have delivered a written notice to the Administrative Agent of such Seller Transactions, certifying that the foregoing condition described in clause (A) above shall be satisfied after giving effect to such transfer and release, together with a pro forma Borrowing Base Certificate giving effect to such release and any concurrent repayment of Advances; and

 

Credit and Security Agreement

8

(D) the Borrower shall have delivered to the Administrative Agent such opinion letters and other documentation related to the repurchase of the Transferred Receivables by the applicable Seller and the proposed transfer of such Transferred Receivables to the applicable Seller in connection therewith as the Administrative Agent may reasonably request (which shall in any event include, without limitation, an opinion letter of qualified counsel with respect to issues of substantive nonconsolidation of the Borrower and confirming or reaffirming the “true sale” and “absolute transfer” of Receivables under the Receivables Sale Agreement); and

(E) the Administrative Agent has consented to such repurchase (such consent not to be unreasonably withheld or delayed); provided , that no such consent with respect to repurchases of Transferred Receivables in connection with Seller Dispositions shall be required in any trailing twelve month period of which the aggregate Transferred Receivables related thereto do not exceed 10% of the aggregate Outstanding Balance of all Transferred Receivables originated during such trailing twelve month period.

Notwithstanding anything in this Agreement or any other Transaction Document to the contrary, the Borrower shall have no obligation to any Seller to reconvey any Transferred Receivables to any Seller or any other Person in connection with any Seller Disposition.

Section 2.05. Commitment Termination Date . Notwithstanding anything to the contrary set forth herein, no Lender shall have any obligation to make any Advances from and after the Commitment Termination Date.

Section 2.06. Interest; Charges .

(a) The Borrower shall pay interest to the Administrative Agent, for the ratable benefit of the Lenders, with respect to the outstanding amount of each Advance made or maintained by each Lender during each Settlement Period, in arrears on each applicable Settlement Date, (i) for each LIBOR Rate Advance outstanding from time to time, at the applicable LIBOR Rate as in effect from time to time during the related Settlement Period, and (ii) for each Index Rate Advance outstanding from time to time, at the applicable Index Rate as in effect from time to time during the related Settlement Period. The Borrower shall pay interest to the Administrative Agent, for the benefit of the Swing Line Lender, with respect to the outstanding amount of each Swing Line Advance, in arrears on each applicable Settlement Date, at the LIBOR Rate as in effect from time to time during the period applicable to such Settlement Date. Interest for each Advance shall be calculated based upon actual days elapsed during the applicable Settlement Period, for a 360 day year based upon actual days elapsed since the last Settlement Date. Unless a LIBOR Rate Disruption Event shall have occurred, each Advance shall be a LIBOR Rate Advance.

(b) If any Termination Event or Designated Event has occurred and is continuing, the interest rates applicable to each Advance and any other unpaid Borrower Obligation hereunder shall be increased by two percent (2.0%) per annum (such increased rate, in each case, the “ Default Rate ”), and all outstanding Borrower Obligations shall bear interest at the applicable Default Rate from the date of such Termination Event or Designated Event until such Termination Event or Designated Event is waived or cured.

(c) The Administrative Agent is authorized to, and at its sole election may, charge to the Borrower as Advances and cause to be paid all Fees, expenses, charges, costs, interest and principal, other than principal of the Advances, owing by the Borrower under this Agreement or any of the other Transaction Documents if and to the extent the Borrower fails to pay any such amounts as and when due,

 

Credit and Security Agreement

9

and any charges so made shall constitute part of the Outstanding Principal Amount hereunder even if such charges would cause the aggregate balance of the Outstanding Principal Amount to exceed the Borrowing Base.

Section 2.07. Fees .

(a) The Borrower shall pay the fees set forth in the Fee Letter.

(b) From and after the date hereof, as additional compensation for the Lenders, the Borrower agrees to pay to Administrative Agent, for the ratable benefit of such Lenders, in arrears for each Settlement Period on each subsequent Settlement Date prior to the Commitment Termination Date and on the Commitment Termination Date, the Unused Fee.

(c) On each Settlement Date, the Borrower shall pay to the Servicer or to the successor Servicer, as applicable, the Servicer Fee or the Successor Servicer Fees and Expenses, respectively, in each case to the extent of available funds therefor pursuant to Section 2.08.

Section 2.08. Application of Collections; Time and Method of Payments .

(a) Each Advance shall mature, and be payable, on the earliest of (i) the date funds are allocated to such Advance pursuant to subsections 2.08(c) or (d)  (and in such case only to the extent of the funds so allocated), (ii) the date when payable pursuant to subsection 2.08(e) , and (iii) the Facility Maturity Date (in which case such Advance shall be payable in full).

(b) Prior to the Commitment Termination Date (and in the absence of any instruction or direction by the Administrative Agent pursuant to clauses (c) or (d)) below), any Collections received by the Borrower or the Servicer shall be held in trust by the Servicer for the payment of any accrued and unpaid Borrower Obligations as provided in this Section 2.08 . Any Collections not set aside for the payment of accrued and unpaid Borrower Obligations may be used by the Borrower for the payment of the purchase price for new Receivables under the Receivables Sale Agreement or for the payment of any amounts owing under Section 2.08(d) . On the Commitment Termination Date and on each day thereafter, the Borrower shall cause the Servicer to set aside and hold in trust for the Secured Parties all Collections received on such day (and, if applicable, any additional amounts of the Borrower for the payment of any accrued and unpaid Borrower Obligations) owed by the Borrower and not previously paid by Borrower in accordance with clause (d) below; provided that if the Administrative Agent has exercised its right to obtain exclusive control over the Collection Accounts and the Concentration Accounts, all Collections shall be held by the Administrative Agent or its designee for application pursuant to this Section 2.08 . On and after the Commitment Termination Date the Borrower shall and shall cause the Servicer to, at any time upon the request from time to time by (or pursuant to standing instructions from) the Administrative Agent, (i) remit to the Agent Account the amounts set aside pursuant to the preceding sentence, and (ii) apply such amounts in accordance with Section 2.08(d) .

(c) Notwithstanding the provisions of clause (b)  above, if:

(x) the Commitment Termination Date has not occurred,

(y) a Designated Event or a Termination Event has occurred and is continuing; and

(z) (1) the Administrative Agent has instructed the Concentration Account Banks (and/or the Collection Account Banks, as applicable) to automatically transfer all

 

Credit and Security Agreement

10

collected and available funds on deposit in the Concentration Accounts (and/or the Collection Accounts, as applicable) to the Agent Account or any other account designated by the Administrative Agent in accordance with the terms hereof, or (2) the Administrative Agent has otherwise instructed the Borrower to transfer all collected and available funds on deposit in the Concentration Accounts (and/or the Collection Accounts, as applicable) to the Agent Account or any other account designated by the Administrative Agent,

then, on each Business Day, the Administrative Agent shall direct all such amounts in the Agent Account or such or other account designated by the Administrative Agent, together with those additional amounts and those amounts received into the Accounts that were set aside pursuant to clause (b)  above as follows in the following order of priority:

(i) first , to be retained in the Agent Account for payment in accordance with clause (i)  of the following subsection (d) , an amount equal to the aggregate Servicer Fees accrued and unpaid through such date;

(ii) second , to be retained in the Agent Account for payment in accordance with clause (ii)  of the following subsection (d) , an amount equal to the aggregate Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;

(iii) third , to be retained in the Agent Account for payment in accordance with clause (iii)  of the following subsection (d) , an amount equal to the aggregate interest with respect to all outstanding Advances then accrued and unpaid;

(iv) fourth , an amount equal to any Funding Excess to be paid, first , to the Swing Line Lender, in respect of Swing Line Advances, until the outstanding principal balance of the Swing Line Advances is reduced to zero, second , pro rata to the Lenders, in respect of Revolving Credit Advances, until the outstanding principal balance of the Revolving Credit Advances is reduced to zero and third , (1) if the Commitment Termination Date has occurred, pro rata , to the Lenders, in respect of the outstanding principal balance of the Term Loan or (2) if the Commitment Termination Date has not occurred, an amount up to the outstanding principal balance of the Term Loan to be retained in the Agent Account as Cash Collateral (or, at the option of the Borrower, paid pro rata , to the Lenders, in respect of the outstanding balance of the Term Loan); in each case, together with any amounts payable with respect thereto under Section 2.16 , if applicable;

(v) fifth , all such remaining amounts to the extent not greater than the Outstanding Principal Amount to be retained in the Agent Account until paid in accordance with the following subsection (d) ;

(vi) sixth , to be retained in the Agent Account for payment in accordance with the applicable provisions of the following subsection (d) , an amount equal to the aggregate amount of all other accrued and unpaid Borrower Obligations which are then required to be paid according to such subsection, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04 ; and

(vii) seventh , (i) if any Borrower Obligations remain outstanding, such amounts shall remain in the Agent Account and (ii) at all other times, any remaining amounts on deposit in the Agent Account to be paid to the Borrower.

 

Credit and Security Agreement

11

(d) On (1) each Settlement Date and (2) each Business Day following the occurrence of the Commitment Termination Date, the Borrower shall (or cause the Servicer to) withdraw amounts on deposit in the Accounts, and pay such amounts, together with (x) those additional amounts and those amounts received into the Accounts that were set aside pursuant to clause (b)  above and (y) if applicable, any other amounts on deposit in the Agent Account, as follows in the following order of priority; provided that if (1) following the occurrence and during the continuation of a Termination Event or a Designated Event, the Administrative Agent has instructed the Concentration Account Banks (and/or the Collection Account Banks, as applicable) to automatically transfer all collected and available funds on deposit in the Concentration Accounts (and/or the Collection Accounts, as applicable) to the Agent Account or any other account designated by the Administrative Agent in accordance with the terms hereof, or (2) following the Commitment Termination Date, the Administrative Agent has otherwise instructed the Borrower to transfer all collected and available funds on deposit in the Concentration Accounts (and/or the Collection Accounts, as applicable) to the Agent Account or any other account designated by the Administrative Agent, then the Administrative Agent shall disburse such amounts in accordance with this clause (d) :

(i) first , to the payment of the aggregate accrued and unpaid Servicer Fees through such date payable to the Servicer; provided , that if the Servicer owes any amounts to the Borrower, such owed amounts shall be set-off from the Servicer Fees so owed and only the net amount of Servicer Fees shall be paid;

(ii) second , to the extent then due and payable, pro rata , to the payment of all Fees accrued and unpaid through such date and all unreimbursed expenses of the Administrative Agent which are reimbursable pursuant to the terms hereof;

(iii) third , to the payment of accrued and unpaid interest which is then due and payable in respect of the applicable Advances, pro rata ;

(iv) fourth , an amount equal to any Funding Excess to be paid, first , to the Swing Line Lender, in respect of Swing Line Advances, until the outstanding principal balance of the Swing Line Advances is reduced to zero, second, pro rata , to the Lenders, in respect of Revolving Credit Advances, until the outstanding principal balance of the Revolving Credit Advances is reduced to zero and third , (1) if the Commitment Termination Date has occurred, pro rata , to the Lenders, in respect of the outstanding principal balance of the Term Loan, or (2) if the Commitment Termination Date has not occurred, an amount up to the outstanding principal balance of the Term Loan to be retained in the Agent Account as Cash Collateral (or, at the option of the Borrower, paid pro rata , to the Lenders, in respect of the outstanding balance of the Term Loan); in each case, together with any amounts payable with respect thereto under Section 2.16 , if applicable;

(v) fifth , if (A) the Commitment Termination Date has occurred or any Termination Event has occurred and is continuing and (B) if any Advances remain outstanding, to the payment of the Outstanding Principal Amount of all other Advances, first , to the Swing Line Lender, in respect of Swing Line Advances, and second , to the Lenders, in respect of Revolving Credit Advances, and third , in respect of the Term Loan pro rata ; in each case, together with any amounts payable with respect thereto under Section 2.16 , if applicable;

(vi) sixth , to the extent then due and payable, pro rata , to the payment of all other obligations of the Borrower accrued and unpaid hereunder, including, without limitation, the expenses of the Lenders reimbursable under Section 12.04 ; and

 

Credit and Security Agreement

12

(vii) seventh , (i) if (A) any Borrower Obligations remain outstanding and (B) a Termination Event or a Designated Event in respect of which a Designated Notice has been issued has occurred and is continuing, such amounts shall remain in or be remitted to the Agent Account and (ii) at all other times, any remaining amounts on deposit in the Concentration Accounts or any of the Collection Accounts to be paid to the Borrower.

(e) If and to the extent a Funding Excess exists on any Business Day, the Borrower shall (i) repay the Swing Line Advances and Revolving Credit Advances in an amount equal to the amount of such Funding Excess to the Agent Account by no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day, which repayment shall be made to the Administrative Agent first, in immediate repayment of the outstanding amount of Swing Line Advances, and if no Swing Line Advances are outstanding, second, in immediate repayment of the outstanding amount of Revolving Credit Advances and (ii) if the outstanding amount of Revolving Credit Advances and Swing Line Advances has been reduced to zero, at the option of the Borrower, either (x) remit Cash Collateral in an amount equal to such Funding Excess or (y) pay principal on the Term Loan in an amount equal to such Funding Excess, each no later than 11:00 a.m. (New York time) on the immediately succeeding Business Day.

(f) To the extent that amounts on deposit in the Agent Account, Concentration Accounts and Collection Accounts, as applicable, or other amounts set aside pursuant to this Section 2.08 are insufficient to pay amounts due on such day in respect of the matured portion of any Advances or any interest, Fees or any other amounts due and payable by the Borrower hereunder, the Borrower shall pay, upon notice from the Administrative Agent, the amount of such insufficiency to the Administrative Agent in Dollars, in immediately available funds (for the account of the Administrative Agent, the applicable Lenders, Affected Parties or Indemnified Persons) not later than 11:00 a.m. (New York time) on such day. Any such payment made on such date but after such time shall be deemed to have been made on, and interest shall continue to accrue and be payable thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or the Index Rate (in all other cases), until the next succeeding Business Day.

(g) The Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of the Borrower, and the Borrower hereby irrevocably agrees that any and all such payments shall be applied by the Administrative Agent in accordance with this Section 2.08 .

(h) All payments of principal of the Advances and all payments of interest, Fees and other amounts payable by the Borrower hereunder shall be made in Dollars, in immediately available funds. If any such payment becomes due on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day and interest thereon at the LIBOR Rate (in the case of LIBOR Rate Advances) or Index Rate (in all other cases) shall be payable during such extension. Payments received at or prior to 2:00 p.m. (New York time) on any Business Day shall be deemed to have been received on such Business Day. Payments received after 2:00 p.m. (New York time) on any Business Day or on a day that is not a Business Day shall be deemed to have been received on the following Business Day.

Section 2.09. Capital Requirements; Additional Costs .

(a) If any Affected Party shall have determined that, after the date hereof, the adoption of or any change in any law, treaty, governmental (or quasi governmental) rule, regulation, guideline or order regarding capital adequacy, reserve requirements or similar requirements or compliance by such Affected Party with any request or directive regarding capital adequacy, reserve requirements or similar requirements (whether or not having the force of law) from any central bank or

 

Credit and Security Agreement

13

other Governmental Authority increases or would have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Affected Party against commitments made by it under this Agreement or any other Transaction Document and thereby reducing the rate of return on such Affected Party’s capital as a consequence of its commitments hereunder or thereunder, then the Borrower shall from time to time upon demand by the Administrative Agent pay to the Administrative Agent on behalf of such Affected Party additional amounts sufficient to compensate such Affected Party for such reduction together with interest thereon from the date of any such demand until payment in full at the applicable Index Rate. A certificate as to the amount of that reduction and showing the basis of the computation thereof submitted by the Affected Party to the Borrower shall be final, binding and conclusive on the parties hereto (absent manifest error) for all purposes.

(b) If, due to any Regulatory Change, there shall be any increase in the cost to any Affected Party of agreeing to make or making, funding or maintaining any commitment hereunder or under any other Transaction Document, including with respect to any Advances or other Outstanding Principal Amount, or any reduction in any amount receivable by such Affected Party hereunder or thereunder, including with respect to any Advances or other Outstanding Principal Amount (any such increase in cost or reduction in amounts receivable are hereinafter referred to as “ Additional Costs ”), then the Borrower shall, from time to time upon demand by the Administrative Agent, pay to the Administrative Agent on behalf of such Affected Party additional amounts sufficient to compensate such Affected Party for such Additional Costs together with interest thereon from the date demanded until payment in full thereof at the applicable Index Rate. Each Affected Party agrees that, as promptly as practicable after it becomes aware of any circumstance referred to above that would result in any such Additional Costs, it shall, to the extent not inconsistent with its internal policies of general application, use reasonable commercial efforts to minimize costs and expenses incurred by it and payable to it by the Borrower pursuant to this Section 2.09(b) . For the avoidance of doubt, this Section 2.09(b) shall not apply to any increase in costs attributable to taxes (whether Indemnified Taxes, Other Taxes or otherwise), which shall instead be governed exclusively by the provisions of Section 2.10 .

(c) Determinations by any Affected Party for purposes of this Section 2.09 of the effect of any Regulatory Change on its costs of making, funding or maintaining any commitments hereunder or under any other Transaction Documents or on amounts payable to it hereunder or thereunder or of the additional amounts required to compensate such Affected Party in respect of any Additional Costs shall be set forth in a written notice to the Borrower in reasonable detail and shall be final, binding and conclusive on the Borrower (absent manifest error) for all purposes.

(d) Notwithstanding anything to the contrary contained herein, if the introduction of or any change in any law or regulation (or any change in the interpretation thereof) shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to make or to continue to fund or maintain any LIBOR Rate Advance, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Rate Advance at another branch or office of that Lender without, in that Lender’s opinion, adversely affecting it or its Advances or the income obtained therefrom, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) the obligation of such Lender to agree to make or to make or to continue to fund or maintain LIBOR Rate Advances shall terminate and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR Rate Advances owing to such Lender, together with interest accrued thereon, unless Borrower, within five (5) Business Days after the delivery of such notice and demand, converts all such LIBOR Rate Advances into Index Rate Advances.

 

Credit and Security Agreement

14

Section 2.10. Taxes .

(a) Any and all payments by the Borrower hereunder shall, to the extent permitted by applicable law, be made in accordance with this Section 2.10 without setoff or counterclaim and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, Charges or withholdings, or other charges imposed by any Governmental Authority (including any interest, additions to tax, on penalties thereto) excluding (1) taxes imposed on or measured by the net income (however denominated), gross receipts or franchise (or similar) taxes imposed on any Affected Party by the jurisdictions under the laws of which such Affected Party is organized, or with which it has a present or former connection (other than any such connection arising from such Affected Party’s having executed, delivered, or performed its obligations or received a payment under, or enforced, this Agreement), or by any political subdivisions thereof, (2) any branch profits (or similar) taxes imposed by the United States or any other jurisdiction, (3) any backup withholding that is required by the IRC to be withheld from amounts payable to a Lender that has failed to comply with clause (A)  of Section 2.10(e)(ii) and (4) in the case of any Lender (other than an assignee pursuant to a request by the Borrower under Section 2.13 ), any withholding tax that (A) is required to be imposed on amounts payable to such Lender pursuant to laws in force at the time such Lender becomes a party hereto, or (B) is attributable to such Lender’s failure or inability (other than as a result of laws in effect at the time such Lender becomes a party hereto or as a result of a Change in Law) to comply with Section 2.10(e) , except to the extent that the assignor of such Lender was entitled, at the time of the assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 2.10(a) (such non-excluded taxes, levies, imposts, deductions, Charges and withholdings being “ Indemnified Taxes ”). If the Borrower or the Administrative Agent shall be required by law to withhold or deduct any Taxes, including both United States, federal backup withholding and withholding taxes, from or in respect of any sum payable hereunder, (A) the Borrower or the Administrative Agent, as applicable, shall withhold or make such deductions as are reasonably determined by the Borrower or the Administrative Agent, as applicable, to be required by applicable law and based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Borrower or the Administrative Agent, as applicable, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority, and (C) to the extent the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be increased as much as shall be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.10 ) the Affected Party entitled to receive any such payment receives an amount equal to the sum it would have received had no such deductions been made. Within 30 days after the date of any payment of Indemnified Taxes or Other Taxes, the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Borrower shall indemnify any Affected Party from and against, and, within ten days of demand therefor, pay any Affected Party for, the full amount of Indemnified Taxes or Other Taxes (together with any Indemnified Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.10 ) paid by such Affected Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted; provided, however, that the applicable Affected Party provides the Borrower with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts. If the Borrower reasonably believes that such Indemnified Taxes or Other Taxes were not correctly or legally asserted, the Affected Parties will use reasonable efforts to cooperate with the Borrower for the Borrower to file for and obtain a refund of such Indemnified Taxes or Other Taxes so long as such efforts would not, in the sole determination of the Administrative Agent, result in any additional costs, expenses or risks or be otherwise disadvantageous to the Affected Parties.

(b) The Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

Credit and Security Agreement

15

(c) Without limiting the provisions of subsection (a)  or (b)  above, each Lender shall, and does hereby, indemnify the Borrower, and shall make payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Borrower) incurred by or asserted against the Borrower by any Governmental Authority as a result of the failure by such Lender to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender to the Lead Borrower or the Administrative Agent pursuant to subsection (e) .

(d) The Borrower shall not be required pursuant to this Section 2.10 to pay any additional amount to, or to indemnify any Lender, to the extent that such Lender becomes subject to Taxes subsequent to the Initial Funding Date (or, if later, the date such Lender becomes a party to this Agreement) as a result of a change in the place of organization or place of doing business of such Lender, except to the extent that any such change is requested or required by the Borrower (and provided that nothing in this Section 2.10(d) shall be construed as relieving the Borrower from any obligation to make such payments or indemnification in the event of a change in place of organization or place of doing business that precedes a change in law to the extent such Taxes result from a change in law).

(e)(i) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by applicable laws or when reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction; provided that such Lender is legally entitled to complete, execute and deliver such documentation.

(ii) Without limiting the generality of the foregoing, so long as the Borrower is resident for tax purposes in the United States:

(A) any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the IRC shall deliver to the Borrower and the Administrative Agent executed originals of IRS Form W-9 or such other documentation or information prescribed by applicable laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Such documentation and information shall be delivered by any such Lender (i) on or prior to the Initial Funding Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete, (iii) after the occurrence of a change in the Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent. For the avoidance of doubt, if such Lender fails to deliver such forms, then the Borrower and Administrative Agent may withhold from any payment to such Lender an amount equivalent to the applicable backup withholding tax imposed by the IRC unless and until such forms are provided; and

 

Credit and Security Agreement

16

(B) each Foreign Lender that is entitled under the IRC or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder shall 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 request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

(1) executed originals of IRS Form W-8BEN (or any successor form thereto) claiming eligibility for benefits of an income tax treaty to which the United States is a party;

(2) executed originals of IRS Form W-8ECI (or any successor form thereto);

(3) executed originals of IRS Form W-8IMY (or any successor form thereto) and all required supporting documentation;

(4) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the IRC, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the IRC, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the IRC, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the IRC and (y) executed originals of IRS Form W-8BEN; or

(5) executed originals of any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.

(iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary to avoid any requirement of applicable laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender and (C) submit to the Borrower and the Administrative Agent such additional executed copies of one or more such forms or certificates as may then be available under the current United States laws and regulations to avoid, or reduce, United States federal withholding taxes in respect of all payments to be made to such Foreign Lender by the Borrower pursuant to this Agreement.

(f) Subject to the last sentence in Section 2.10(a), and unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender, as the case may be. If the Administrative Agent or any Lender determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount

 

Credit and Security Agreement

17

equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.10 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. In such event, the Administrative Agent or such Lender, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority ( provided that the Administrative Agent or such Lender may delete any information therein that they deem confidential). This subsection shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person.

Section 2.11. Increases .

(a) Provided there exists no Termination Event or Incipient Termination Event, with the consent of the Administrative Agent, the Borrower may from time to time following the date that is 45 days after the Initial Funding Date, request one or more increases in the Term Loan and the Maximum Revolving Commitment Amount by an aggregate amount (for all such requests) not exceeding the lesser of (i) $150,000,000 and (ii) $500,000,000 minus the Aggregate Commitment in effect after giving effect to all increases in the Aggregate Commitment pursuant to Section 2.15 hereof. Any such request for an increase shall be in a minimum amount of $25,000,000. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than fifteen Business Days from the date of delivery of such notice to the Lenders). Any increase requested pursuant to this Section 2.11 shall be allocated as a pro rata increase in the Term Loan and the Maximum Revolving Commitment Amount (based upon the principal balance of the Term Loan and the Maximum Revolving Commitment Amount as of the related “Increase Effective Date” as defined below). Any increase in the Term Loan pursuant to this Section 2.11 shall be funded by the Lenders participating in such increase in the Term Loan and the Maximum Revolving Commitment Amount on the related Increase Effective Date.

(b) Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its portion of the Term Loan and the Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its portion of the Term Loan and the Revolving Commitment.

(c) The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent, the Borrower may also invite additional Persons to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, no affiliate of the Borrower (including any Sponsor, any portfolio company of any Sponsor or any of their respective Affiliates) may participate in any such increase as a “Lender” without the written consent of the Requisite Lenders.

(d) If the Term Loan and the Maximum Revolving Commitment Amount is increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date.

 

Credit and Security Agreement

18

(e) As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date signed by an Authorized Officer (i) certifying as to the due authorization by the Borrower of such increase, and (ii) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained herein and the other Transaction Documents are true and correct in all material respects (it being understood that such materiality threshold shall not be applicable with respect to any clause of any representation or warranty which itself contains a materiality qualification) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (B) no Termination Event or Incipient Termination Event exists. The Borrower shall prepay any Advances outstanding on the Increase Effective Date to the extent necessary to keep the outstanding Advances ratable with any revised Pro Rata Shares arising from any nonratable increase in the Term Loan and the Revolving Commitments under this Section 2.11 .

(f) In addition to the other terms and conditions set forth herein for increasing the Term Loan and the Maximum Revolving Commitment Amount, any increase in the Term Loan and the Maximum Revolving Commitment Amount pursuant to this Section 2.11 shall be subject to the additional condition that the Administrative Agent shall approve all up-front fees and other compensation paid to any additional institution which becomes a Lender hereunder or which increases its Term Loan and Revolving Commitment hereunder, and that no up-front fees or other compensation, regardless of how characterized, shall be paid to any such additional institution at a level greater than that received by the existing Lenders unless each existing Lender concurrently receives such incremental compensation. For purposes of the immediately preceding sentence, (x) any up-front fees or similar compensation paid to any Lender shall be deemed to equal a per annum rate (the “ Attributable Rate ”) equal to (i) (A) the total dollar number of up-front fees or similar compensation paid to such Lender divided by (B) the dollar amount of such Lender’s Term Loan and Revolving Commitment multiplied by (ii) a fraction, (A) the numerator of which equals 360 and (B) the denominator of which equals the number of days between the date of such Lender’s Term Loan and Revolving Commitment and the Final Advance Date; (y) if the Attributable Rate paid to any new or increasing Lender exceeds the Attributable Rate for any existing Lender, the incremental fees owed to such existing Lender shall equal to the amount of such difference times such existing Lender’s Term Loan and Revolving Commitment and (z) any up-front fees or similar compensation shall be deemed to exclude any underwriting fees, arrangement fees administration fees or structuring fees paid in connection with the initial closing of the transactions contemplated hereby.

(g) This Section shall supersede any provisions in this Agreement to the contrary.

Section 2.12. Change of Lending Office . Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.09 or 2.10 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Advances affected by such event with the object of avoiding the consequences of such event; provided , that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided , further , that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.09 or 2.10 .

 

Credit and Security Agreement

19

Section 2.13. Replacement of Lenders .

(a) The Borrower shall be permitted to replace any Lender that requests reimbursement for amounts owing pursuant to Section 2.09 or 2.10 or any Non-Funding Lender with a replacement financial institution; provided that (i) such replacement does not conflict with any requirement of law, (ii) no Designated Event or Termination Event shall have occurred and be continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall have taken no action under Section 2.12 so as to eliminate the continued need for payment of amounts owing pursuant to Section 2.09 or 2.10 , (iv) the replacement financial institution shall purchase, at par, all Advances and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the replacement financial institution shall be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 12.02 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (vii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.09 or 2.10 , as the case may be, and (viii) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender.

(b) If, in connection with any proposed amendment, modification, waiver or termination in accordance with Section 12.07 (a “ Proposed Change ”) requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained being referred to as a “ Non-Consenting Lender ”), then, so long as the Administrative Agent is not a Non-Consenting Lender, at the Borrower’s request the Administrative Agent, or a Person acceptable to the Administrative Agent, shall have the right with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lenders, and such Non-Consenting Lenders agree that they shall, upon the Administrative Agent’s request, sell and assign to the Administrative Agent or such Person, all of the Revolving Commitments of such Non-Consenting Lender for an amount equal to the principal balance of all Advances held by the Non-Consenting Lender and all accrued interest and Fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement.

Section 2.14. Non-Funding Lenders .

(a) If a Lender becomes a Non-Funding Lender, then, so long as such Lender remains a Non-Funding Lender in accordance with clause (b)  below, notwithstanding any other provisions of this Agreement, any amount paid by the Borrower for the account of a Non-Funding Lender under this Agreement (whether on account of Advances, interest, Fees, Breakage Costs, indemnity payments or other amounts) will not be paid or distributed to such Non-Funding Lender, but will, so long as such Lender is a Non-Funding Lender, instead be retained by the Administrative Agent in a segregated non-interest bearing account (the “ Non-Funding Lender Account ”), until the Termination Date and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first, to the payment of any amounts, if any, due and owing by such Non-Funding Lender to the Administrative Agent under this Agreement, together with interest thereon owing at the Index Rate; second , to the payment of any amounts owing by such Non-Funding Lender to the Swing Line Lender under this Agreement; third , to the payment of interest due and payable to the Other Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; fourth , to the payment of fees then due and payable to the Other Lenders, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth , if as of any Settlement Date the aggregate principal amount of Revolving Credit Advances of any Other Lender exceeds its Pro Rata Share (as determined without giving effect to the proviso in the definition thereof) of all Revolving Credit Advances, to repay the Revolving Credit Advances of each such Other Lender in the amount necessary to eliminate such excess, pro rata based on the Revolving Credit

 

Credit and Security Agreement

20

Advances of the Other Lenders; sixth , to make any other mandatory reductions of Revolving Credit Advances of the Other Lenders required under Section 2.08 , pro rata based on the Revolving Credit Advances of such Other Lenders; seventh , to the ratable payment of other amounts then due and payable to the Other Lenders; and eighth , to pay any interest, Advances or other amounts owing under this Agreement to such Non-Funding Lender in the order of priority set forth in Section 2.08(b) hereof or as a court of competent jurisdiction may otherwise direct; provided that funds shall be redirected from the Non-Funding Lender Account to pay amounts owed under clauses second through seventh solely after application of other funds on deposit in the Agent Account and only to the extent that such other funds are insufficient to make such payments. Any funds redirected from the Non-Funding Lender Account to make payments under clauses second through seventh above shall not be deemed to be payment by the Borrower for purposes of determining whether a Termination Event or a Designated Event has occurred and shall not discharge any obligations of the Borrower to make such payment. To the extent that any Other Lenders have been paid with amounts redirected from the Non-Funding Lender Account, the Non-Funding Lender shall, from and after payment in full of all interest, Advances and other amounts owed to the Other Lender, be subrogated to the rights of the Other Lenders to the extent of any such payments from the Non-Funding Lender Account under clause eighth above.

(b) If the Borrower and the Administrative Agent agree in writing in their discretion that a Non-Funding Lender should no longer be deemed to be a Non-Funding Lender, the Administrative Agent will so notify the other parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.14(a) , such Non-Funding Lender will, to the extent applicable, purchase such portion of outstanding Revolving Credit Advances of the Other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Credit Advances of all of the Lenders to be on a pro rata basis in accordance with their respective Revolving Commitments, whereupon such Lender will cease to be a Non-Funding Lender, provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while such Lender was a Non-Funding Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, such notification will not constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Non-Funding Lender.

Section 2.15. Post-Closing Increases .

(a) Provided there exists no Termination Event or Incipient Termination Event, with the consent of the Administrative Agent, the Borrower may request one or more increases in the Revolving Commitment and the Term Loan at any time during the period commencing on the Initial Funding Date and ending on the date that is 45 days after the Initial Funding Date in an amount that would not cause the Aggregate Commitment to exceed $500,000,000 after giving effect to any such increase. Any increase requested pursuant to this Section 2.15 shall be allocated as a pro rata increase in the Term Loan and the Maximum Revolving Commitment Amount (based upon the principal balance of the Term Loan and the Maximum Revolving Commitment Amount as of the date of any increase under this Section 2.15 ). Any increase in the Term Loan pursuant to this Section 2.15 shall be funded by the Lenders participating in such increase in the Term Loan and the Maximum Revolving Commitment Amount on the effective date of any such increase.

(b) Notwithstanding anything herein to the contrary, no affiliate of the Borrower (including any Sponsor, any portfolio company of any Sponsor or any of their respective Affiliates) may participate in any such increase as a “Lender” without the written consent of the Requisite Lenders.

 

Credit and Security Agreement

21

(c) As a condition precedent to any such increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date signed by an Authorized Officer (i) certifying as to the due authorization by the Borrower of such increase, and (ii) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained herein and the other Transaction Documents are true and correct in all material respects (it being understood that such materiality threshold shall not be applicable with respect to any clause of any representation or warranty which itself contains a materiality qualification) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and (B) no Termination Event or Incipient Termination Event exists. The Borrower shall prepay any Advances outstanding on the Increase Effective Date to the extent necessary to keep the outstanding Advances ratable with any revised Pro Rata Shares arising from any nonratable increase in the Term Loan and the Revolving Commitments under this Section 2.15 .

(d) In addition to the other terms and conditions set forth herein for increasing the Term Loan and the Maximum Revolving Commitment Amount, any increase in the Term Loan and the Maximum Revolving Commitment Amount pursuant to this Section 2.15 shall be subject to the additional condition that the Administrative Agent shall approve all up-front fees and other compensation paid to any additional institution which becomes a Lender hereunder or which increases its Term Loan and Revolving Commitment hereunder.

(e) This Section shall supersede any provisions in this Agreement to the contrary.

Section 2.16. Breakage Costs . To induce the Lenders to provide the LIBOR Rate on the terms provided herein, if (i) any LIBOR Rate Advances are, except by reason of the requirements in Section 2.03(c) , repaid in whole or in part on any date other than a Settlement Date (whether that repayment is made pursuant to any other provision of this Agreement or any other Transaction Document or is the result of acceleration, by operation of law or otherwise); (ii) the Borrower shall default in payment when due of the principal amount of or interest on any LIBOR Rate Advance; (iii) the Borrower shall default in making any borrowing of LIBOR Rate Advances after the Borrower has given notice requesting the same in accordance herewith (including any failure to satisfy conditions precedent to the making of any LIBOR Rate Advances); or (iv) the Borrower shall fail to make any prepayment of a LIBOR Rate Advance after the Borrower has given a notice thereof in accordance herewith, then, in any such case, the Borrower shall indemnify and hold harmless each Lender from and against all losses, costs and expenses resulting from or arising from any of the foregoing (any such loss, cost or expense, “ Breakage Costs ”). Such indemnification shall include any loss (including loss of margin) or expense arising from the reemployment of funds obtained by it or from fees payable to terminate deposits from which such funds were obtained (if any). For the purpose of calculating amounts payable to a Lender under this subsection, this subsection shall apply only to Lenders that have actually funded its relevant LIBOR Rate Advance through the purchase of a deposit bearing interest at the LIBOR Rate in an amount equal to the amount of that LIBOR Rate Advance; provided , however , that each Lender may fund each of its LIBOR Rate Advances in any manner it sees fit, and the foregoing sentence shall be utilized only for the calculation of amounts payable under this subsection. This covenant shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder. The determination by any Lender of the amount of any such loss or expense shall be set forth in a written notice to the Borrower in reasonable detail and shall be final, binding and conclusive on the Borrower (absent manifest error) for all purposes.

 

Credit and Security Agreement

22

ARTICLE III.

CONDITIONS PRECEDENT

Section 3.01. Conditions to Effectiveness of Agreement . This Agreement shall not be effective until the date on which each of the following conditions have been satisfied, in the sole discretion of, or waived in writing by, the Lenders and the Administrative Agent (such date, the “ Effective Date ”):

(a) Transaction Documents . This Agreement and (to the extent requested by the Lenders) the Notes shall have been duly executed by, and delivered to, the parties hereto and the Lenders and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions as each Lender and the Administrative Agent shall request in connection with the transactions contemplated by this Agreement, including all those listed in the Schedule of Documents (other than the opinions letters of Simpson Thacher & Bartlett LLP with respect to issues of substantive consolidation and true sale and absolute transfer, which shall be required to be delivered in accordance with Section 3.02 below), each in form and substance satisfactory to each Lender and the Administrative Agent.

(b) Governmental Approvals . The Lenders and the Administrative Agent shall have received satisfactory evidence that the Borrower, the Servicer and the Sellers have obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby or thereby.

(c) Compliance with Laws . The Borrower, the Sellers and the Servicer shall be in compliance with all applicable foreign, federal, state and local laws and regulations, including, without limitation, those specifically referenced in Section 5.01(a) , except to the extent noncompliance could not reasonably be expected to have a Material Adverse Effect.

(d) Payment of Fees . The Borrower and the Parent, as applicable, shall have paid all fees required to be paid by such Person on the Effective Date, including all fees required hereunder, under the Fee Letter and any other letter agreements executed in connection herewith, and the Borrower shall have reimbursed the Administrative Agent for all reasonable fees, costs and expenses of closing the transactions contemplated hereunder and under the other Transaction Documents, including the Administrative Agent’s legal and audit expenses, and other document p