CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT [__] TO THE CREDIT AGREEMENT
FORM OF TERM LOAN NOTE
$[__________] [Insert Lender's Committed Amount]
[__, 20__] [Insert date of issuance]
CUSIP: [Insert CUSIP if applicable]
This Form of Term Loan Note (this "Note") is a blank form and template annexed as an Exhibit to the Credit Agreement (as defined below). This Note is to be completed and delivered only upon the written request of a Lender entitled to receive a promissory note in accordance with the terms of the Credit Agreement. Each requesting Lender shall cause the appropriate fields set forth herein to be completed prior to execution and delivery by the Borrower.
RECITALS
Borrower/Maker: [Insert full legal name of Borrower], a corporation organized and existing under the laws of [Insert state of incorporation], with its principal office located at [Insert address] (the "Borrower").
Payee/Lender: [Insert full legal name of Lender] (the "Lender").
WHEREAS, the Borrower, the Guarantors party thereto, [Insert name of Administrative Agent], as Administrative Agent and Collateral Agent (in such capacities, the "Administrative Agent" and the "Collateral Agent," respectively), and the Lenders party thereto, have entered into that certain Credit Agreement, dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, refinanced, or otherwise modified from time to time, the "Credit Agreement"), pursuant to which the Lenders have agreed, subject to the terms and conditions set forth therein, to make certain Term Loans to the Borrower;
WHEREAS, this Note is one of the "Notes" referred to in, and is issued pursuant to, the Credit Agreement, and the Lender is entitled to the benefits and protections of the Credit Agreement with respect to this Note;
WHEREAS, the Lender has requested the issuance of this Note to evidence the indebtedness of the Borrower to the Lender arising under the Credit Agreement in respect of the Term Loans made by the Lender to the Borrower; and
WHEREAS, all capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to such terms in the Credit Agreement. The rules of interpretation set forth in Section 1.02 of the Credit Agreement shall apply to this Note mutatis mutandis.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower hereby agrees as follows:
Section 1. Promise to Pay
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby unconditionally promises to pay to the order of [Insert full legal name of Lender] (the "Lender"), in lawful money of the United States of America, the principal sum of [Insert Dollar Amount in Words] DOLLARS ($[Insert Numerical Amount]), or, if less, the aggregate unpaid principal amount of all Term Loans made by the Lender to the Borrower pursuant to the Credit Agreement, as such amount may be reduced from time to time by payments or prepayments made in accordance with the Credit Agreement.
Such principal amount shall be payable on the dates and in the amounts specified in, and in accordance with the terms of, the Credit Agreement. Without limiting the generality of the foregoing, the Borrower shall repay the outstanding principal amount of the Term Loans evidenced hereby in consecutive quarterly installments on the dates and in the amounts set forth in Section 2.07 of the Credit Agreement, with the final installment of all remaining unpaid principal, together with all accrued and unpaid interest thereon and all other amounts owing hereunder and under the Credit Agreement in respect of the Term Loans, due and payable in full on the Maturity Date (as defined in the Credit Agreement).
[Instructional Note: The Maturity Date under the Credit Agreement is [Insert date — 7 years from closing]. Reference should be made to the definition of "Maturity Date" in Section 1.01 of the Credit Agreement, as such date may be subject to extension or acceleration in accordance with the terms thereof.]
Section 2. Interest
The Borrower further promises to pay interest on the unpaid principal amount of each Term Loan evidenced hereby, from the date of such Term Loan until the principal amount thereof shall be paid in full, at the rates per annum and on the Interest Payment Dates determined in accordance with the provisions of the Credit Agreement.
[Instructional Note: Interest accrues at Adjusted Term SOFR plus the Applicable Margin, subject to the SOFR Floor, as set forth in Section 2.08 of the Credit Agreement. The Applicable Margin is determined by reference to the Pricing Grid set forth therein. Reference should also be made to the provisions governing the selection of Interest Periods and the mechanism for conversion between Benchmark-based rate elections.]
Without limiting the foregoing, the Borrower promises to pay interest at the Default Rate applicable under the Credit Agreement upon the occurrence and during the continuance of an Event of Default, as and to the extent required by Section 2.08(b) of the Credit Agreement. Such Default Rate interest shall accrue from the date of the occurrence of such Event of Default (or, if later, from the date on which the Administrative Agent or the Required Lenders notify the Borrower that the Default Rate is in effect) until such Event of Default is cured or waived in accordance with the Credit Agreement.
[Instructional Note: The Default Rate equals the otherwise applicable rate plus [Insert bps] basis points per annum, as set forth in the definition of "Default Rate" in Section 1.01 and in Section 2.08(b) of the Credit Agreement. Interest at the Default Rate shall be payable on demand.]
All computations of interest shall be made in accordance with the day-count conventions specified in the Credit Agreement, including, without limitation, the provisions of Section 2.08(d) thereof.
Section 3. Payments
(a) Manner of Payment. All payments of principal of and interest on this Note shall be made in lawful money of the United States of America in immediately available funds, without setoff, counterclaim, deduction, or withholding of any kind (except as required by applicable law), and shall be made to the Administrative Agent for the account of the Lender at the account designated by the Administrative Agent in writing from time to time, or as otherwise directed by the Administrative Agent in accordance with the Credit Agreement. The Administrative Agent shall promptly distribute to the Lender its pro rata share of any such payment in accordance with the terms of the Credit Agreement.
(b) Business Days. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day (as defined in the Credit Agreement), such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of the amount of interest due hereunder and under the Credit Agreement, all as more fully set forth in the Credit Agreement.
(c) Mandatory Prepayments. The Borrower shall make mandatory prepayments of the Term Loans evidenced hereby as and when required under Section 2.09 of the Credit Agreement, including, without limitation, mandatory prepayments arising from (i) Excess Cash Flow, (ii) Asset Sale proceeds, (iii) Casualty Event proceeds, (iv) the incurrence of Indebtedness not permitted under the Credit Agreement, and (v) such other events as are specified in the Credit Agreement. Any such mandatory prepayments shall be applied to reduce the outstanding principal balance of this Note in accordance with the Credit Agreement, in the order and manner specified therein.
(d) Voluntary Prepayments. The Borrower may make voluntary prepayments of the Term Loans evidenced hereby in whole or in part, at any time and from time to time, in accordance with, and subject to, the terms and conditions specified in Section 2.10 of the Credit Agreement, including, without limitation, any applicable minimum prepayment amounts and notice requirements set forth therein.
[Instructional Note: Voluntary prepayments during the Repricing Protection Period (as defined in the Credit Agreement) may be subject to a prepayment premium as set forth in Section 2.10(b) of the Credit Agreement. The prepayment premium is equal to [__]% of the aggregate principal amount of the Term Loans prepaid during such period. Reference should be made to the Credit Agreement for the specific terms governing the Repricing Protection Period and the calculation of the prepayment premium.]
(e) Application of Payments. All payments and prepayments of principal made hereunder shall be applied in accordance with the provisions of the Credit Agreement. To the extent any payment hereunder is insufficient to pay all amounts then due, such payment shall be applied in the order of priority specified in the Credit Agreement.
Section 4. Records of Loans and Payments
(a) Lender's Records. The Lender is hereby authorized to record on the schedule annexed hereto (or, if such schedule is not annexed, in the Lender's own internal books and records) (i) the date and amount of each Term Loan made by the Lender to the Borrower hereunder, (ii) the date and amount of each payment or prepayment of principal received by the Lender, and (iii) the applicable interest rate for each Interest Period with respect to such Term Loan. Each such recordation shall constitute prima facie evidence of the accuracy of the information so recorded.
(b) No Effect on Obligations. The failure of the Lender to make any notation on the schedule annexed hereto or in its internal records, or any error in any such notation, shall not in any manner affect the validity or enforceability of the Borrower's obligation to repay the unpaid principal amount of the Term Loans evidenced hereby, together with all accrued interest thereon, in accordance with the terms of this Note and the Credit Agreement.
(c) Controlling Records. The entries made by the Lender on the schedule annexed hereto or in the Lender's internal records, or by the Administrative Agent in the Register maintained pursuant to Section 2.04 of the Credit Agreement (or such other Section as may be applicable), shall be prima facie evidence of the existence, amounts, and terms of the obligations of the Borrower recorded therein, absent manifest error. In the event of any discrepancy between the records of the Lender and the Register maintained by the Administrative Agent, the Register maintained by the Administrative Agent shall be controlling, absent manifest error.
Section 5. Credit Agreement Governs
(a) Benefits of Credit Agreement. This Note is issued pursuant to, and is entitled to all of the benefits and protections of, the Credit Agreement. Reference is hereby made to the Credit Agreement for a statement of the rights and obligations of the Lender and the Borrower in respect of this Note, which rights and obligations are hereby incorporated herein by this reference.
(b) Acceleration and Prepayment. The Credit Agreement contains, among other things, (i) provisions for the acceleration of the maturity of the principal amount of this Note upon the occurrence of certain Events of Default set forth in Article VIII of the Credit Agreement, and (ii) provisions for optional and mandatory prepayments of the principal amount hereof prior to the maturity hereof, in each case subject to the terms and conditions specified therein.
(c) Security. This Note and the obligations of the Borrower hereunder are secured by the Liens on the Collateral granted pursuant to the Collateral Documents (as defined in the Credit Agreement), including, without limitation, the Security Agreement, the Pledge Agreement, and each other Collateral Document executed and delivered in connection with the Credit Agreement, all as more fully described therein.
(d) Guarantee. This Note and the obligations of the Borrower hereunder are guaranteed by the Guarantors pursuant to the Guarantee Agreement executed and delivered in connection with the Credit Agreement. The Lender is entitled to the benefits of such Guarantee Agreement with respect to the obligations evidenced by this Note.
(e) Conflicts. In the event of any conflict or inconsistency between the terms, conditions, or provisions of this Note and the terms, conditions, or provisions of the Credit Agreement, the terms, conditions, and provisions of the Credit Agreement shall govern and control in all respects.
Section 6. Transferability; Assignment
(a) Restrictions on Transfer. This Note may not be transferred, assigned, negotiated, pledged, hypothecated, or otherwise disposed of by the Lender except in accordance with the terms and conditions governing assignments set forth in the Credit Agreement.
[Instructional Note: Assignments of Term Loans are governed by Section [__] of the Credit Agreement and require the use of the form of Assignment and Assumption Agreement attached as Exhibit [__] thereto. All assignments must comply with the minimum assignment amount and other conditions specified therein, and must comply with LSTA standard terms for par/near-par term loan trades as incorporated by reference in the Credit Agreement. Certain assignments require the consent of the Borrower and/or the Administrative Agent as specified in the Credit Agreement.]
(b) Issuance of New Notes upon Assignment. Upon any assignment of the Lender's interest (or any portion thereof) in the Term Loans evidenced hereby in accordance with the Credit Agreement, the assignee shall be entitled to receive, upon the request of the assignee, a new Note in the principal amount of its assigned commitment or outstanding Term Loan balance, and the Borrower shall execute and deliver such new Note to the assignee. If the assigning Lender retains any portion of its Term Loan commitment or outstanding Term Loan balance after giving effect to such assignment, the assigning Lender shall surrender this Note to the Borrower, and the Borrower shall execute and deliver a new Note to the assigning Lender in the principal amount of its retained commitment or outstanding Term Loan balance.
(c) Register. Notwithstanding any provision of this Note to the contrary, the obligations of the Borrower under this Note are registered obligations, the right, title, and interest of the Lender and its assignees in and to such obligations being transferable only upon notation of such transfer in the Register maintained by the Administrative Agent pursuant to the Credit Agreement.
Section 7. Governing Law
THIS NOTE AND ANY CLAIM, CONTROVERSY, DISPUTE, OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) BASED UPON, ARISING OUT OF, OR RELATING TO THIS NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF [INSERT GOVERNING LAW STATE], WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
[Instructional Note: Insert the governing law specified in the Credit Agreement. The Credit Agreement specifies the law of the State of New York as the governing law. Reference should be made to Section [__] of the Credit Agreement for the complete governing law provision, including any acknowledgment regarding the provisions of New York General Obligations Law Sections 5-1401 and 5-1402.]
Section 8. Jurisdiction; Waiver of Jury Trial
(a) Submission to Jurisdiction. The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the courts specified in the Credit Agreement in any action, proceeding, or counterclaim (whether based on contract, tort, or otherwise) arising out of or relating to this Note, and each of the parties hereto agrees that all claims in respect of any such action or proceeding shall be heard and determined in such courts. The Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law.
[Instructional Note: The Credit Agreement provides for the exclusive jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof. Reference should be made to Section [__] of the Credit Agreement for the complete forum selection provisions.]
Nothing in this Section 8 shall affect the right of the Lender to serve legal process in any other manner permitted by applicable law or to bring any action or proceeding against the Borrower or its property in the courts of any other jurisdiction to the extent permitted by the Credit Agreement.
(b) Waiver of Venue Objection. The Borrower hereby irrevocably waives, to the fullest extent permitted by applicable law, (i) any objection that it may now or hereafter have to the laying of venue of any action, proceeding, or counterclaim arising out of or relating to this Note in any court referred to in Section 8(a) above, and (ii) the defense of an inconvenient forum to the maintenance of such action, proceeding, or counterclaim in any such court.
(c) WAIVER OF JURY TRIAL.
THE BORROWER AND THE LENDER EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS NOTE, THE CREDIT AGREEMENT, ANY OTHER LOAN DOCUMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE 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 PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS NOTE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8(c).
Section 9. Waiver of Presentment, Demand, and Notice
The Borrower hereby expressly and unconditionally waives, to the fullest extent permitted by applicable law:
(a) presentment for payment, demand of payment, and protest of this Note;
(b) notice of presentment, dishonor, nonpayment, and protest of this Note;
(c) notice of intention to accelerate the maturity of this Note and notice of such acceleration;
(d) all other notices, demands, and formalities of every kind in connection with the delivery, acceptance, performance, default, or enforcement of this Note, the non-receipt of or failure to give any of which shall not affect the liability of the Borrower hereunder; and
(e) diligence in collection and any requirement that the Lender, the Administrative Agent, or the Collateral Agent exhaust any right or remedy, or take any action, against the Borrower, any Guarantor, any other Person, or any Collateral, before proceeding to enforce the obligations of the Borrower under this Note.
No failure or delay on the part of the Lender in exercising any right, power, or privilege hereunder or under the Credit Agreement shall operate as a waiver thereof, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided in this Note and in the Credit Agreement are cumulative and are not exclusive of any other rights or remedies that the Lender may otherwise have at law, in equity, or otherwise.
Section 10. Amendments
(a) Written Amendment Required. No amendment, modification, supplement, termination, consent, or waiver of any provision of this Note, and no consent to any departure by the Borrower from any provision hereof, shall be effective unless the same shall be in writing and signed by the Borrower and the Lender (or, in the case of a waiver, signed by the Lender), and then such amendment, modification, supplement, termination, consent, or waiver shall be effective only in the specific instance and for the specific purpose for which given.
(b) Credit Agreement Amendment Provisions Control. Notwithstanding the foregoing, to the extent that any amendment, modification, supplement, termination, consent, or waiver of any provision of this Note is required or permitted to be made in accordance with the amendment and waiver provisions of the Credit Agreement (including, without limitation, Section [__] thereof), such amendment, modification, supplement, termination, consent, or waiver shall be governed exclusively by the amendment and waiver provisions of the Credit Agreement, and the consent of each individual Lender holding a Note shall not be required except to the extent specifically required under the Credit Agreement.
(c) Binding Effect. Any amendment, modification, supplement, termination, consent, or waiver effected in accordance with this Section 10 shall be binding upon the Borrower, the Lender, and each future holder of this Note.
Execution
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and delivered by its duly authorized officer as of the date first above written.
[INSERT FULL LEGAL NAME OF BORROWER]
By: ________
Name: [Insert name]
Title: [Insert title]
[Instructional Note: This Note is to be signed by an authorized officer of the Borrower as certified in the Incumbency Certificate delivered by the Borrower pursuant to Section [__] of the Credit Agreement in connection with the Closing Date. If the Borrower has designated specific officers authorized to execute Notes, this Note must be executed by one of such designated officers. The signature should be verified against the specimen signatures included in the Incumbency Certificate.]
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
to FORM OF TERM LOAN NOTE dated [__________, 20__] of [Insert full legal name of Borrower] payable to the order of [Insert full legal name of Lender]
[This schedule is provided for the convenience of the Lender only and does not constitute a part of this Note for purposes of determining the obligations of the Borrower. The failure to record any information on this schedule, or any error in any entry recorded hereon, shall not limit, reduce, or otherwise affect the obligations of the Borrower under this Note or the Credit Agreement. In the event of any discrepancy between the entries on this schedule and the Register maintained by the Administrative Agent pursuant to Section [__] of the Credit Agreement, the Register maintained by the Administrative Agent shall be controlling, absent manifest error.]
ANNEX A
INSTRUCTIONS FOR COMPLETION
(Internal Guidance — Not Part of Note)
General. This Form of Term Loan Note is attached as Exhibit [] to the Credit Agreement, dated as of July 21, 2022 (as amended, restated, supplemented, or otherwise modified from time to time), among the Borrower, the Guarantors party thereto, the Administrative Agent, and the Lenders party thereto. This Form of Term Loan Note is to be completed and delivered by the Borrower only upon the written request of a Lender entitled to receive a promissory note in accordance with Section [] of the Credit Agreement. Issuance of a Note is not a condition to any Lender's rights under the Credit Agreement; the obligations of the Borrower exist and are enforceable irrespective of whether a Note has been issued.
Completion Instructions. When completing this form, the following fields should be populated with the applicable information:
(a) Payee / Lender Name. Insert the full legal name of the requesting Lender as it appears in the Register maintained by the Administrative Agent. This name should be used consistently throughout the Note wherever a reference to the Lender appears.
(b) Principal Amount. Insert the principal amount equal to the Lender's Term Loan commitment (in the case of a Note issued on the Closing Date) or the outstanding principal amount of the Term Loans held by the Lender as of the date of issuance (in the case of a Note issued subsequent to the Closing Date). The principal amount should be expressed both in words and in numerals. The principal amount should be confirmed with the Administrative Agent prior to completion.
(c) Date of Issuance. Insert the date on which the Note is to be issued and delivered to the Lender. This is typically the Closing Date (in the case of an initial Note) or the effective date of an Assignment and Assumption (in the case of a Note issued in connection with an assignment).
(d) Borrower Information. Insert the full legal name of the Borrower, including its jurisdiction of organization (state of incorporation) and the address of its principal office, as set forth in the Credit Agreement.
(e) Credit Agreement Date. Insert the date of the Credit Agreement (July 21, 2022). If the Credit Agreement has been amended and restated, reference the date of the most recent amendment and restatement, with a reference to the original date.
(f) Administrative Agent Name. Insert the full legal name of the entity serving as Administrative Agent and Collateral Agent under the Credit Agreement as of the date of issuance.
(g) Maturity Date. Insert the Maturity Date as defined in the Credit Agreement. The Maturity Date is the date that is seven (7) years from the Closing Date, subject to any extensions or modifications made in accordance with the Credit Agreement.
(h) Governing Law. Insert "New York" as the governing law state. The Credit Agreement specifies that the law of the State of New York governs the Credit Agreement and each Loan Document, including this Note.
(i) Forum Selection and Jury Waiver. Insert the forum selection provisions consistent with the Credit Agreement, specifying the courts of the State of New York sitting in the Borough of Manhattan and the United States District Court for the Southern District of New York. The jury waiver language set forth in Section 8(c) of this form should be retained in full without modification.
Authorization and Execution. The Borrower's execution of this Note should be authorized by the same officers identified in the Incumbency Certificate delivered pursuant to the Credit Agreement. Prior to delivering an executed Note to any Lender, the Borrower should confirm that the executing officer is authorized to bind the Borrower and that such authorization has not been revoked or modified since the delivery of the most recent Incumbency Certificate.
Multiple Notes; Assignments. If a Lender assigns a portion of its commitment or outstanding Term Loan balance in accordance with the Credit Agreement:
(i) The assigning Lender shall surrender its existing Note to the Borrower for cancellation.
(ii) The Borrower shall execute and deliver a new Note to the assignee in the principal amount of the assigned portion of the Term Loan.
(iii) If the assigning Lender retains a portion of its Term Loan commitment or outstanding balance, the Borrower shall also execute and deliver a new Note to the assigning Lender in the principal amount of such retained portion.
(iv) The aggregate principal amount of all new Notes issued in connection with any such assignment shall equal the principal amount of the surrendered Note.
(v) Each new Note shall be dated as of the effective date of the applicable Assignment and Assumption and shall be in the form of this Exhibit [__].
CUSIP Numbers. If a CUSIP number has been assigned to the Term Loan facility, such CUSIP number should be inserted in the appropriate field on the first page of the Note. CUSIP numbers are provided for convenience of reference only and shall not be deemed to be a part of the Note for any purpose. No representation is made as to the accuracy of any CUSIP number as printed on any Note. The Administrative Agent should be consulted to confirm the applicable CUSIP number prior to completion.
Record-Keeping. A copy of each executed Note should be retained by the Borrower in its records, and a copy should be provided to the Administrative Agent for inclusion in the credit file. The Administrative Agent should update the Register to reflect the issuance of each Note.
[END OF FORM OF TERM LOAN NOTE]
Date