Second Amended And Restated Credit Agreement

SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of January 31, 2019 Among MASONITE INTERNATIONAL CORPORATION, as Canadian Borrower and Parent Borrower, MASONITE CORPORATION and THE OTHER U.S. BORROWERS FROM TIME TO TIME PARTY HERETO, as U.S. ...

Exhibit 4.1

dated as of January 31, 2019
among
MASONITE INTERNATIONAL CORPORATION,
as Canadian Borrower and Parent Borrower,
MASONITE CORPORATION
and

THE OTHER U.S. BORROWERS FROM TIME TO TIME PARTY HERETO,
as U.S. Borrowers,
PREMDOR CROSBY LIMITED
and
THE OTHER U.K. BORROWERS FROM TIME TO TIME PARTY HERETO,
as U.K. Borrowers,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and L/C Issuer,
BANK OF AMERICA, N.A.,
as a Syndication Agent,
and
ROYAL BANK OF CANADA,
HSBC BANK USA, NATIONAL ASSOCIATION,
JPMORGAN CHASE BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION,

REGIONS BANK,
and

TD BANK, N.A.,
as Co-Documentation Agents,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
BANK OF AMERICA, N.A.,
ROYAL BANK OF CANADA,
and

HSBC BANK USA, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Lead Bookrunners






TABLE OF CONTENTS

 
 
 
Page
 
 
 
 
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1

 
 
 
 
 
Section 1.01.
Defined Terms
1

 
Section 1.02.
Other Interpretative Provisions
75

 
Section 1.03.
Accounting Terms and Determinations
77

 
Section 1.04.
Rounding
78

 
Section 1.05.
Times of Day
78

 
Section 1.06.
Letter of Credit Amounts
78

 
Section 1.07.
Currency Equivalents Generally
78

 
 
 
 
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
78

 
 
 
 
 
Section 2.01.
The Loans
78

 
Section 2.02.
Borrowings, Conversions and Continuations of Loans
86

 
Section 2.03.
Letters of Credit
88

 
Section 2.04.
Prepayments
101

 
Section 2.05.
Termination or Reduction of Commitments
104

 
Section 2.06.
Repayment of Revolving Credit Loans
105

 
Section 2.07.
Interest
105

 
Section 2.08.
Fees
106

 
Section 2.09.
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
106

 
Section 2.10.
Evidence of Debt
107

 
Section 2.11.
Payments Generally; Administrative Agent’s Clawback
108

 
Section 2.12.
Sharing of Payments by Revolving Credit Lenders
113

 
Section 2.13.
Increase in Revolving Credit Facility
114

 
Section 2.14.
LIBO Rate Successor
117

 
 
 
 
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
118

 
 
 
 
 
Section 3.01.
Taxes
118

 
Section 3.02.
Illegality
122

 
Section 3.03.
Inability to Determine Rates
123

 
Section 3.04.
Increased Costs
123

 
Section 3.05.
Compensation for Losses
124

 
Section 3.06.
Mitigation Obligations; Replacement of Revolving Credit Lenders
125

 
Section 3.07.
United Kingdom Tax Matters
126

 
Section 3.08.
Survival
132

 
 
 
 
 
 
 
 
 
 
 
 

i



TABLE OF CONTENTS

ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
132

 
 
 
 
 
Section 4.01.
Conditions to Initial Credit Extension
132

 
Section 4.02.
Conditions to All Credit Extensions
135

 
 
 
 
ARTICLE V REPRESENTATIONS AND WARRANTIES
136

 
 
 
 
 
Section 5.01.
Existence, Qualification and Power
136

 
Section 5.02.
Authorization; No Contravention
136

 
Section 5.03.
Governmental Authorization; Other Consents
136

 
Section 5.04.
Binding Effect
136

 
Section 5.05.
Financial Condition; No Material Adverse Effect
137

 
Section 5.06.
Litigation
138

 
Section 5.07.
No Default
138

 
Section 5.08.
Ownership of Property; Liens; Investments
138

 
Section 5.09.
Environmental Compliance
139

 
Section 5.10.
Insurance
140

 
Section 5.11.
Taxes
140

 
Section 5.12.
ERISA; Foreign Pension Plans; Employee Benefit Arrangements
140

 
Section 5.13.
Subsidiaries; Equity Interests; Loan Parties
142

 
Section 5.14.
Margin Regulations; Investment Company Act
142

 
Section 5.15.
Disclosure
142

 
Section 5.16.
Compliance with Law
143

 
Section 5.17.
Intellectual Property
143

 
Section 5.18.
Solvency
143

 
Section 5.19.
Casualty, Etc
143

 
Section 5.20.
Labor Matters
143

 
Section 5.21.
Collateral Documents
143

 
Section 5.22.
Immaterial Subsidiaries
144

 
Section 5.23.
Patriot Act; Beneficial Ownership
144

 
Section 5.24.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
144

 
Section 5.25.
Centre of Main Interests
145

 
Section 5.26.
U.K. Pensions
145

 
Section 5.27.
Ranking
145

 
 
 
 
ARTICLE VI AFFIRMATIVE COVENANTS
145

 
 
 
 
 
Section 6.01.
Financial Statements
145

 
Section 6.02.
Certificates; Other Information
146

 
Section 6.03.
Notices
150

 
Section 6.04.
Payment of Obligations
151

 
Section 6.05.
Preservation of Existence Etc
151

 
Section 6.06.
Maintenance of Properties
151


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TABLE OF CONTENTS

 
Section 6.07.
Maintenance of Insurance
151

 
Section 6.08.
Compliance with Laws
151

 
Section 6.09.
Books and Records
152

 
Section 6.10.
Inspection Rights
152

 
Section 6.11.
Use of Proceeds
152

 
Section 6.12.
Additional Loan Parties; Additional Security
152

 
Section 6.13.
Compliance with Environmental Laws
156

 
Section 6.14.
Further Assurances
156

 
Section 6.15.
Collateral Administration
156

 
Section 6.16.
Maintenance of Cash Management System
158

 
Section 6.17.
[Reserved]
159

 
Section 6.18.
Canadian Pension Plans
159

 
Section 6.19.
U.K. Pensions
159

 
Section 6.20.
Centre of Main Interests
159

 
Section 6.21.
People with Significant Control regime
159

 
 
 
 
ARTICLE VII NEGATIVE COVENANTS
159

 
 
 
 
 
Section 7.01.
Restriction on Liens
160

 
Section 7.02.
Limitation on Indebtedness
163

 
Section 7.03.
Investments
166

 
Section 7.04.
Fundamental Changes
169

 
Section 7.05.
Dispositions
170

 
Section 7.06.
Restricted Payments, etc.
172

 
Section 7.07.
Change in Nature of Business
175

 
Section 7.08.
Transactions with Affiliates
175

 
Section 7.09.
Burdensome Agreements
176

 
Section 7.10.
Use of Proceeds
178

 
Section 7.11.
Financial Covenants
178

 
Section 7.12.
Amendment of Organizational Documents
178

 
Section 7.13.
Accounting Changes
178

 
Section 7.14.
Prepayments of Indebtedness, etc
178

 
Section 7.15.
Amendments of Transaction Documents and Indebtedness
179

 
Section 7.16.
Certain Activities
179

 
Section 7.17.
Establishment of Defined Benefit Plan
179

 
Section 7.18.
Independence of Covenants
179

 
 
 
 
ARTICLE VIII EVENTS OF DEFAULT
180

 
 
 
 
 
Section 8.01.
Events of Default
180

 
Section 8.02.
Remedies upon Event of Default
183

 
Section 8.03.
Application of Funds
183

 
Section 8.04.
Collection Allocation Mechanism
189


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TABLE OF CONTENTS

ARTICLE IX AGENCY PROVISIONS
191

 
 
 
 
 
Section 9.01.
Appointment and Authority
191

 
Section 9.02.
Rights as a Revolving Credit Lender
193

 
Section 9.03.
Exculpatory Provisions
193

 
Section 9.04.
Reliance by Administrative Agent
194

 
Section 9.05.
Delegation of Duties; Agency for Perfection
194

 
Section 9.06.
Resignation of Agent
194

 
Section 9.07.
Non-Reliance on Administrative Agent and Other Revolving Credit Lenders
195

 
Section 9.08.
No Other Duties, Etc.
196

 
Section 9.09.
Administrative Agent May File Proofs of Claim
196

 
Section 9.10.
Collateral and Guaranty Matters
196

 
Section 9.11.
Appointment of Collateral Agent as Security Trustee
197

 
Section 9.12.
Secured Cash Management Agreements and Secured Hedge Agreements
200

 
 
 
 
ARTICLE X MISCELLANEOUS
201

 
 
 
 
 
Section 10.01.
Amendments, Etc
201

 
Section 10.02.
Notices; Effectiveness; Electronic Communication
203

 
Section 10.03.
No Waiver; Cumulative Remedies; Enforcement
205

 
Section 10.04.
Expenses; Indemnity; Damage Waiver
206

 
Section 10.05.
Payments Set Aside
208

 
Section 10.06.
Successors and Assigns
208

 
Section 10.07.
Treatment of Certain Information; Confidentiality
213

 
Section 10.08.
Right of Setoff
214

 
Section 10.09.
Interest Rate Limitation
215

 
Section 10.10.
Counterparts; Integration; Effectiveness
215

 
Section 10.11.
Survival of Representations and Warranties
215

 
Section 10.12.
Severability
216

 
Section 10.13.
Replacement of Lenders
216

 
Section 10.14.
Governing Law; Jurisdiction Etc.
217

 
Section 10.15.
Waiver of Jury Trial
218

 
Section 10.16.
No Advisory or Fiduciary Responsibility
218

 
Section 10.17.
Electronic Execution of Assignments and Certain Other Documents
218

 
Section 10.18.
USA Patriot Act Notice
219

 
Section 10.19.
Judgment Currency
219

 
Section 10.20.
Anti-Money Laundering Legislation
220

 
Section 10.21.
Acknowledgment and Restatement.
220

 
Section 10.22.
Acknowledgment and Consent to Bail-In of EEA Financial Institutions
221

 
Section 10.23.
Release of Crown Door Corporation
222

 
Section 10.24.
Release of U.K. Loan Parties
222

 
 
 
 

iv



TABLE OF CONTENTS

Schedules:
 
 
Schedule 1.01A
Immaterial Subsidiaries
 
 
Schedule 1.01C
Unrestricted Subsidiaries
 
 
Schedule 2.01
Commitments and Applicable Percentage
 
 
Schedule 2.03
Existing Letters of Credit
 
 
Schedule 5.08(b)
Existing Liens
 
 
Schedule 5.08(c)
Owned Real Property
 
 
Schedule 5.08(d)(i)
Leased Real Property (Lessee)
 
 
Schedule 5.08(d)(ii)
Leased Real Property (Lessor)
 
 
Schedule 5.08(e)
Existing Investments
 
 
Schedule 5.13
Subsidiaries and Other Equity Investments; Loan Parties
 
 
Schedule 6.12
Guarantors
 
 
Schedule 7.02
Existing Indebtedness
 
 
Schedule 7.09
Burdensome Agreements
 
 
Schedule 10.02
Administrative Agent’s Office; Certain Addresses for Notices
 
 
 
 
 
Exhibits:
 
 
Exhibit A-1
Form of Committed Loan Notice
 
 
Exhibit A-2
Form of Prepayment Notice
 
 
Exhibit B
Form of Revolving Credit Note
 
 
Exhibit C-1
Form of Assignment and Assumption
 
 
Exhibit C-2
Form of Administrative Questionnaire
 
 
Exhibit D
Form of Compliance Certificate
 
 
Exhibit E-1
Form of U.S. Guaranty
 
 
Exhibit E-2
Form of Canadian Guarantee
 
 
Exhibit F-1
Form of U.S. Security Agreement
 
 
Exhibit F-2
Form of Canadian Security Agreement
 
 
Exhibit F-3
Form of U.K. Security Agreement
 
 
Exhibit F-4
Form of Perfection Certificate
 
 
Exhibit G
Form of Loan Party Accession Agreement
 
 
Exhibit H
Form of Solvency Certificate
 
 
Exhibit I
Form of Borrowing Base Certificate
 


v



Second Amended and Restated Credit Agreement (this “Agreement”) dated as of January 31, 2019 among MASONITE INTERNATIONAL CORPORATION, a British Columbia corporation (the “Canadian Borrower” or the “Parent Borrower”), MASONITE CORPORATION, a Delaware corporation (the “Lead U.S. Borrower”), PREMDOR CROSBY LIMITED, a limited company incorporated in England and Wales with company number 03227274 (the “Lead U.K. Borrower” and, together with any U.K. Subsidiary that becomes a Borrower party to this Agreement after the date hereof, individually and collectively, the “U.K. Borrower”), each other borrower from time to time party hereto (collectively with the Lead U.S. Borrower, the Canadian Borrower and the U.K. Borrower, the “Borrowers” and, individually, a “Borrower”), each lender from time to time party hereto, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and L/C Issuer, BANK OF AMERICA, N.A., as Syndication Agent, ROYAL BANK OF CANADA, HSBC BANK USA, NATIONAL ASSOCIATION, JPMORGAN CHASE BANK, N.A., PNC BANK, NATIONAL ASSOCIATION, REGIONS BANK, and TD BANK, N.A., as Co-Documentation Agents, and WELLS FARGO BANK, NATIONAL ASSOCIATION, BANK OF AMERICA, N.A., ROYAL BANK OF CANADA, and HSBC BANK USA, NATIONAL ASSOCIATION, as Joint Lead Arrangers and Joint Lead Bookrunners.
PRELIMINARY STATEMENTS
WHEREAS, the Borrowers are parties to the Amended and Restated Credit Agreement, dated as of April 9, 2015 (as amended, supplemented or otherwise modified and in effect immediately prior to the Restatement Effective Date, the “Existing Credit Agreement”), entered into by the Borrowers, Masonite Inc. (which has been amalgamated with and into the Parent Borrower), the Administrative Agent, the lenders party thereto (the “Existing Lenders”) and the other agents and parties thereto;
WHEREAS, in accordance with Section 10.01 of the Existing Credit Agreement, the Borrowers, the Revolving Credit Lenders and the Administrative Agent desire to amend and restate the Existing Credit Agreement as provided herein;
WHEREAS, Masonite Primeboard, Inc. was dissolved on December 31, 2018;
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned hereby agree that the Existing Credit Agreement shall be (and hereby is) amended and restated in its entirety to read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01.    Defined Terms. AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS HAVE THE MEANINGS SET FORTH BELOW:
2023 Note Indenture” means the Indenture, dated as of March 23, 2015, among Parent Borrower, certain subsidiaries of Parent Borrower, and Wells Fargo Bank, National Association, as trustee.
2023 Notes” means $500,000,000 in aggregate principal amount of the Parent Borrower’s Senior Notes due 2023.


 
1
 




2026 Note Indenture” means the Indenture, dated as of August 27, 2018, among Parent Borrower, certain subsidiaries of Parent Borrower, and Wells Fargo Bank, National Association, as trustee.
Accession Agreement” means a Loan Party Accession Agreement, substantially in the form of Exhibit G hereto, executed and delivered by an Additional Borrower or an Additional Subsidiary Guarantor after the Restatement Effective Date.
Additional Borrower” means each Person that becomes a U.S. Borrower after the Restatement Effective Date by execution of an Accession Agreement as provided in Section 6.12.
Additional Collateral Documents” has the meaning specified in Section 6.12(b).
Additional Lender” has the meaning specified in Section 2.13(d).
Additional Loans” has the meaning specified in Section 2.13(a).
Additional Subsidiary Guarantor” means each Person that becomes a Subsidiary Guarantor after the Restatement Effective Date by execution of an Accession Agreement.
Adjusted LIBO Rate” means, for any Interest Period with respect to a Eurocurrency Loan for the applicable currency, the quotient obtained (expressed as a decimal, carried out to five decimal places) by dividing (i) the applicable LIBO Rate for such Interest Period by (ii) 1.00 minus the Eurocurrency Reserve Percentage.
Administrative Agent” means Wells Fargo Bank, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent and, with respect to matters relating to the Canadian Revolving Credit Facility, means WFCF Canada, acting on behalf of Wells Fargo Bank.
Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower Representative and the Revolving Credit Lenders.
Administrative Questionnaire” means an Administrative Questionnaire substantially in the form of Exhibit C-2 or in any other form approved by the Administrative Agent.
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agent” means the Administrative Agent, each syndication agent or documentation agent party hereto from time to time or the Collateral Agent and any successors and assigns in such capacity, and “Agents” means any two or more of them.
Agent Parties” has the meaning specified in Section 10.02(c).
Aggregate Commitments” means at any time the Revolving Credit Commitments of all the Revolving Credit Lenders.


 
2
 




Aggregate Compliance Threshold” means, at any time, 10% of the Aggregate Commitments at such time.
Aggregate Debt Basket Amount” means, at any date of determination and with respect to Indebtedness incurred under Section 7.02(i), (vi), (viii)(B) and (xxi), the greater of (i) $975,000,000 or (ii) 45.0% of Consolidated Total Assets.
Agreement” means this Amended and Restated Credit Agreement.
AML Legislation” has the meaning specified in Section 10.20(a).
Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, the Corruption of Foreign Public Officials Act (Canada), and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries is located or is doing business.
Anti-Money Laundering Laws” means the applicable laws or rules or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including any applicable provision of (a) Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56), (b) the Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), (c) the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), (d) the Proceeds of Crime Act 2002 (UK), the Money Laundering Regulations 2007 (UK) and Terrorism Act 2000 (UK) and (e) any other applicable anti-money laundering, anti-terrorist financing, government sanction and “know-you-customer” laws.
Applicable Adjusted Percentage” means, with respect to any Revolving Credit Lender at any time, its percentage of the applicable Facility computed as set forth in the definition of “Applicable Percentage” but with reference only to the Revolving Credit Commitments under such Facility of all non-Defaulting Lenders at such time. Absent the existence of one or more Defaulting Lenders under the applicable Facility at any time of determination, the Applicable Adjusted Percentage of each Revolving Credit Lender under such Facility shall equal its Applicable Percentage. The Applicable Adjusted Percentage of each Revolving Credit Lender shall adjust automatically whenever a Lender Default occurs or ceases to exist under or with respect to an applicable Facility.
Applicable Fee Rate” means 0.25%.
Applicable Percentage” means, on any date of determination, (i) with respect to any U.S. Revolving Credit Lender, the fraction (expressed as a percentage carried out to the ninth decimal place) the numerator of which is such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment on such date and the denominator of which is the U.S. Revolving Credit Facility at such time; provided, that, if the Revolving Credit Commitments have expired or been terminated or reduced to zero, then the numerator shall be such U.S. Revolving Credit Lender’s U.S. Revolving Credit Exposure on such date and the denominator shall be the U.S. Revolving Credit Exposure of all U.S. Revolving Credit Lenders on such date, (ii) with respect to any Canadian Revolving Credit Lender, the fraction (expressed as a percentage carried out to the ninth decimal place) the numerator of which is such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment on such date and the denominator of which is the Canadian Revolving Credit Facility at such time; provided, that, if the Canadian Revolving Credit


 
3
 




Commitments have expired or been terminated or reduced to zero, then the numerator shall be such Canadian Revolving Credit Lender’s Canadian Revolving Credit Exposure on such date and the denominator shall be the Canadian Revolving Credit Exposure of all Canadian Revolving Credit Lenders on such date and (iii) with respect to any U.K. Revolving Credit Lender, the fraction (expressed as a percentage carried out to the ninth decimal place) the numerator of which is such U.K. Revolving Credit Lender’s U.K. Revolving Credit Commitment on such date and the denominator of which is the U.K. Revolving Credit Facility at such time; provided, that, if the U.K. Revolving Credit Commitments have expired or been terminated or reduced to zero, then the numerator shall be such U.K. Revolving Credit Lender’s U.K. Revolving Credit Exposure on such date the denominator shall be the U.K. Revolving Credit Exposure of all U.K. Revolving Credit Lenders on such date. The initial Applicable Percentage of each Appropriate Lender for each Facility is set forth opposite the name of such Revolving Credit Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable.
Applicable Rate” means (i) from the Restatement Effective Date to the date on which the Administrative Agent receives a Borrowing Base Certificate pursuant to Section 6.02(l) for the full fiscal month first ending following the Restatement Effective Date, the rates set forth below in Pricing Level 1, and (ii) thereafter, the applicable percentage per annum set forth below determined by reference to the Average Excess Availability for the most recently ended fiscal month for which a Borrowing Base Certificate has been received by the Administrative Agent pursuant to Section 6.02(l):
Applicable Rate
Pricing Level
Average Excess Availability
Adjusted LIBO Rate, BA Rate or Letter of Credit Fees

U.S. Base Rate, Canadian Base Rate or U.K. Base Rate
 
1
Greater than or equal to 33.3% of the Aggregate Commitments in effect as of such date
1.25%
0.25%
 
2
Less than 33.3% of the Aggregate Commitments in effect as of such date
1.50%
0.50%
 

After the first full fiscal month following the Restatement Effective Date, any increase or decrease in the Applicable Rate resulting from a change in the Average Excess Availability shall become effective as of the first Business Day immediately following the date a Borrowing Base Certificate is delivered pursuant to Section 6.02(l); provided, however, that if a Borrowing Base Certificate is not delivered when due in accordance with such Section, then Pricing Level 2 shall apply as of the first Business Day after the date on which a Borrowing Base Certificate was required to have been delivered and shall remain in effect until the first Business Day immediately following the date on which such Borrowing Base Certificate is so delivered.
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.09(b).


 
4
 




Appraisal” means an appraisal of the Inventory of the Borrowers prepared by Hilco Appraisal Services or another third party appraisal firm reasonably acceptable to the Administrative Agent and the Parent Borrower.
Appropriate Lender” means, at any time, as applicable, (i) with respect to the U.S. Revolving Credit Facility, a U.S. Revolving Credit Lender at such time, (ii) with respect to the U.S. Letter of Credit Sublimit, (A) a U.S. L/C Issuer and (B) if any U.S. Letters of Credit have been issued, the U.S. Revolving Credit Lenders, (iii) with respect to the Canadian Revolving Credit Facility, a Canadian Revolving Credit Lender at such time, (iv) with respect to the Canadian Letter of Credit Sublimit, (A) a Canadian L/C Issuer and (B) if any Canadian Letters of Credit have been issued, the Canadian Revolving Credit Lenders, (v) with respect to the U.K. Revolving Credit Facility, a U.K. Revolving Credit Lender at such time and (vi) with respect to the U.K. Letter of Credit Sublimit, (A) a U.K. L/C Issuer and (B) if any U.K. Letters of Credit have been issued, the U.K. Revolving Credit Lenders.
Approved Foreign Currency” means, with respect to any Letter of Credit issued by an L/C Issuer, any currency (other than Dollars, Canadian Dollars or Pounds Sterling) approved by such L/C Issuer in which such Letter of Credit is denominated.
Approved Fund” means any Fund that is administered or managed by (i) a Revolving Credit Lender, (ii) an Affiliate of a Revolving Credit Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Revolving Credit Lender.
Arranger” means the collective reference to Wells Fargo Capital Finance, LLC, Bank of America, N.A., Royal Bank of Canada, Deutsche Bank Securities Inc. and Barclays Bank PLC, in their capacities as joint lead arrangers and joint lead bookrunners.
Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption” means an assignment and assumption entered into by a Revolving Credit Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially in the form of Exhibit C-1 hereto or any other form approved by the Administrative Agent in its reasonable discretion.
Attributable Indebtedness” means, at any date, (i) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (ii) in respect of any Synthetic Lease Obligation of any Person, the capitalized or principal amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement were accounted for as a Capital Lease, and (iii) in respect of any Sale/Leaseback Transaction, the lesser of (A) the present value, discounted in accordance with GAAP at the interest rate implicit in the related lease, of the obligations of the lessee for net rental payments over the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor be extended) and (B) the fair market value of the assets subject to such transaction.
Audited Financial Statements” means the audited consolidated balance sheet of the Parent Borrower and its Consolidated Subsidiaries for the fiscal year ended December 31, 2017, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Parent Borrower and its Consolidated Subsidiaries, including the notes thereto.


 
5
 




Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
Availability Period” means the period from and including the Restatement Effective Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Revolving Credit Commitments pursuant to Section 2.05 and (iii) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.
Availability Reserve” means, on any date of determination and with respect to the U.S. Borrowing Base, the Canadian Borrowing Base or the U.K. Borrowing Base, as the case may be, the sum (without duplication) of: (i) the Rent and Charges Reserve; (ii) the Cash Management Reserve, Canadian Secured Hedge Reserve, U.K. Secured Hedge Reserve and U.S. Secured Hedge Reserve; (iii) all accrued Royalties of, (x) in the case of the U.S. Borrowing Base, the U.S. Borrowers, (y) in the case of the Canadian Borrowing Base, the Canadian Loan Parties and (z) in the case of the U.K. Borrowing Base, the U.K. Loan Parties; (iv) the aggregate amount of liabilities secured by Liens upon Eligible Collateral that are senior to the Administrative Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default, if any, arising therefrom); (v) the Canadian Priority Payables Reserve; (vi) the Dilution Reserve; (vii) reserves equal to three months of fees and other amounts payable under the Genpact Contract or any similar successor service contract; (viii) the In-Transit Adjustment Reserves; (ix) a reserve established in the Credit Judgment of Administrative Agent to reflect fluctuations in the exchange rate of any Approved Foreign Currency into Dollars, Canadian Dollars or Pounds Sterling with respect to U.S. L/C Obligations, Canadian L/C Obligations or U.K. L/C Obligations denominated in such Approved Foreign Currency, (x) the U.K. Priority Payables Reserve, (xi) the Springing Maturity Date Debt Reserve (if any) or (xii) such additional reserves, in such amounts and with respect to such matters, as the Administrative Agent in its Credit Judgment may deem necessary or appropriate to impose from time to time. Except for purposes of determining compliance with Section 4.02(d), no Availability Reserve pursuant to clause (xii) above may be established or increased except upon not less than five Business Days’ notice to the Parent Borrower (unless an Event of Default exists, in which event no notice shall be required). The Administrative Agent will be available during such period to discuss any such proposed Availability Reserve or increase with the Borrowers and, without limiting the right of the Administrative Agent to establish or increase such Availability Reserves in the Administrative Agent’s Credit Judgment, the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such Availability Reserve no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent. For the avoidance of doubt, no Availability Reserve may be taken with respect to the Receivables that are deemed ineligible for the inclusion into the Eligible Collateral by virtue of clause (vi) of the definition of Eligible Receivables. The amount of any Availability Reserve established by the Administrative Agent shall have a reasonable relationship as determined by the Administrative Agent in its Credit Judgment to the event, condition or other matter that is the basis for the Availability Reserve. Notwithstanding anything herein to the contrary, circumstances, conditions, events or contingencies arising prior to the Restatement Effective Date of which the Administrative Agent had actual knowledge prior to the Restatement Effective Date shall not be the basis for the establishment of the Availability Reserves unless the Administrative Agent establishes such Availability Reserve on the Restatement Effective Date or such circumstances, conditions, events or contingencies shall have changed since the Restatement Effective Date in any material respect.
Average Canadian Revolving Credit Facility Balance” means, for any period, the amount obtained by adding the Dollar Equivalent of the Outstanding Amount of Canadian Revolving Credit Loans and Canadian L/C Obligations at the end of each day for the period in question and by dividing such sum by the number of days in such period.


 
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Average Excess Availability” means, on any date of determination, the amount obtained by adding the amount of Excess Availability (plus, solely for purposes of determining the Applicable Rate hereunder, the amount of Qualified Cash) at the end of each day during a stipulated consecutive Business Day, calendar day or fiscal quarter period and by dividing such sum by the number of Business Days or calendar days, as the case may be, in such period.
Average Revolving Credit Facility Balance” means, for any period, the sum of (a) the Average Canadian Revolving Credit Facility Balance, (b) the Average U.K. Revolving Credit Facility Balance and (c) the Average U.S. Revolving Credit Facility Balance.
Average U.K. Revolving Credit Facility Balance” means, for any period, the amount obtained by adding the Dollar Equivalent of the Outstanding Amount of U.K. Revolving Credit Loans and U.K. L/C Obligations at the end of each day for the period in question and by dividing such sum by the number of days in such period.
Average U.S. Revolving Credit Facility Balance” means, for any period, the amount obtained by adding the Outstanding Amount of U.S. Revolving Credit Loans and U.S. L/C Obligations at the end of each day for the period in question and by dividing such sum by the number of days in such period.
BA Rate” means the average rate per annum as reported on the Reuters Screen CDOR Page (or any successor page or such other page or commercially available service displaying Canadian interbank bid rates for Canadian Dollar bankers’ acceptances as the Administrative Agent may designate from time to time, or if no such substitute service is available, the rate quoted by a Schedule I bank under the Bank Act (Canada) selected by the Administrative Agent at which such bank is offering to purchase Canadian Dollar bankers’ acceptances) as of 10:00 a.m. Eastern (Toronto) time on the date of commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the BA Rate Loan requested (whether as an initial BA Rate Loan or as a continuation of a BA Rate Loan or as a conversion of a Canadian Base Rate Loan to a BA Rate Loan) by Canadian Borrower in accordance with this Agreement (and, if any such reported rate is below zero, then the rate shall be deemed to be zero). Each determination of the BA Rate shall be made by the Administrative Agent and shall be conclusive in the absence of manifest error.
BA Rate Loan” means any Canadian Revolving Credit Loan denominated in Canadian Dollars bearing interest at a rate determined by reference to the BA Rate.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority.
Bail-In Legislation” means, with respect to any EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bank Levy” means the United Kingdom Tax known as the “bank levy” as enacted in Schedule 19 of the Finance (No.3) Act 2011 and any similar levy or tax imposed by the United Kingdom which is calculated on the basis of, or in relation to, a Secured Party’s or its Affiliates’ balance sheet or capital base or any part of that person’s liabilities or minimum regulatory capital (or any combination thereof).


 
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Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
Base Rate” means (a) the U.S. Base Rate with respect to Base Rate Loans denominated in U.S. Dollars, and (b) the U.K. Base Rate with respect to Base Rate Loans denominated in Pounds Sterling.
Base Rate Loan” means a Revolving Credit Loan or a Swingline Loan that bears interest based on the Base Rate.
Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
Beneficial Ownership Regulation” means 31 C.F.R. Section 1010.230.
BIA” means the Bankruptcy and Insolvency Act (Canada) and any rule or regulation issued thereunder, in effect from time to time.
Borrower Materials” has the meaning specified in Section 6.02.
Borrower Representative” means the Parent Borrower.
Borrowers” means the Canadian Borrower, the U.K. Borrower and the U.S. Borrowers, collectively.
Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans or Swingline Loans of the same Type and, in the case of Eurocurrency Loans or BA Rate Loans, having the same Interest Period made by each of the Appropriate Lenders pursuant to Section 2.01.
Borrowing Base” means any of the U.S. Borrowing Base, the Canadian Borrowing Base, the U.K. Borrowing Base and/or the Total Borrowing Base, as the context may require.
Borrowing Base Certificate” means a certificate, substantially in the form of Exhibit I hereto, of the chief financial officer, chief accounting officer, treasurer or other financial officer of the Parent Borrower delivered to the Revolving Credit Lenders pursuant to Section 4.01(a)(xii), 4.02(e) or 6.02(l), as applicable, and setting forth in reasonable detail the calculation of each Borrowing Base as of the date required by such Section.
Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, (x) with respect to the U.S. Revolving Credit Facility, the state where the Administrative Agent’s Office is located, (y) with respect to the Canadian Revolving Credit Facility, the jurisdiction where the Administrative Agent’s principal Canadian lending Affiliate or branch is located or (z) with respect to the U.K. Revolving Credit Facility, London, England, except that (i) when used in Section 2.03 with respect to any action taken by or with respect to any L/C Issuer, the term “Business Day” shall not include any day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the jurisdiction where such L/C Issuer’s Lending Office is located, and (ii) if such day relates to any Eurocurrency Loan, such day shall also be a


 
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day on which dealings in Dollar or Pounds Sterling deposits, as applicable, are conducted by and between banks in the London interbank Eurocurrency market.
CAM” means the mechanism for the allocation and exchange of interests in the Revolving Credit Loans, participations in Letters of Credit and collections thereunder established pursuant to Section 8.04.
CAM Exchange” means the exchange of the Revolving Credit Lenders’ interests provided for in Section 8.04.
CAM Exchange Date” means the first date after the Restatement Effective Date on which there shall occur (i) any Event of Default under clause (f) or (g) of Section 8.01 with respect to any Borrower or (ii) an acceleration of Revolving Credit Loans pursuant to Section 8.02(ii).
CAM Percentage” means, as to each Revolving Credit Lender, a fraction, expressed as a decimal, of which (i) the numerator shall be the sum, without duplication, of the Dollar Equivalents of (A) the Canadian Revolving Credit Exposure, if any, of such Revolving Credit Lender, (B) the U.S. Revolving Credit Exposure, if any, of such Revolving Credit Lender, (C) the U.K. Revolving Credit Exposure, if any ,of such Revolving Credit Lender and (D) the aggregate amount of any other Senior Credit Obligations otherwise owed to such Revolving Credit Lender pursuant to the Loan Documents, in each case immediately prior to the CAM Exchange Date, and (ii) the denominator shall be the sum of the Dollar Equivalents of (A) the aggregate Canadian Revolving Credit Exposure of all the Revolving Credit Lenders, (B) the aggregate U.S. Revolving Credit Exposure of all Revolving Credit Lenders, (C) the aggregate U.K. Revolving Credit Exposure of all Revolving Credit Lenders and (D) the aggregate amount of any other Senior Credit Obligations otherwise owed to all Revolving Credit Lenders pursuant to the Loan Documents, in each case immediately prior to the CAM Exchange Date.
Canadian Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the BA Rate existing on such day (which rate shall be calculated based upon an Interest Period of one (1) month), plus one (1) percentage point, and (b) the “prime rate” for Canadian Dollar commercial loans made in Canada as reported by Thomson Reuters under Reuters Instrument Code <CAPRIME=> on the “CA Prime Rate (Domestic Interest Rate) – Composite Display” page (or any successor page or such other commercially available service or source (including the Canadian Dollar “prime rate” announced by a Schedule I bank under the Bank Act (Canada)) as the Administrative Agent may designate from time to time) and, if any such rate is below zero, then such rate shall be deemed to be zero. Each determination of the Canadian Base Rate shall be made by the Administrative Agent and shall be conclusive in the absence of manifest error.
Canadian Base Rate Loan” means any Canadian Revolving Credit Loan or Canadian Swingline Loan denominated in Canadian Dollars bearing interest computed by reference to the Canadian Base Rate.
Canadian Borrower” means the Parent Borrower.
Canadian Borrowing Base” means, on any date of determination, an amount equal to the Dollar Equivalent of the Loan Value of the Eligible Collateral of the Canadian Loan Parties, less the Dollar Equivalent of the Availability Reserve to the extent attributable to the Canadian Loan Parties, the Canadian Finance Obligations or the Canadian Collateral in the Administrative Agent’s Credit Judgment on such date.


 
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Canadian Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Canadian Revolving Credit Lender or an Affiliate of a Canadian Revolving Credit Lender, in its capacity as a party to such Cash Management Agreement, in each case in respect of services provided under such Cash Management Agreement to a Canadian Loan Party or a Foreign Subsidiary of a Loan Party.
Canadian Collateral” means all of the “Collateral” referred to in the Canadian Collateral Documents and all of the other property and assets that are or are required under the terms hereof or of the Canadian Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.
Canadian Collateral Documents” means, collectively, the Canadian Security Agreement, the Deed of Hypothec, the Canadian Depositary Bank Agreements, any Additional Collateral Documents, any additional pledges or security agreements that create or purport to create a Lien on Canadian Collateral in favor of the Collateral Agent for the benefit of the Secured Parties and any instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing.
Canadian Depositary Bank Agreement” means an agreement among a Canadian Loan Party, a bank or other depositary institution and the Collateral Agent, in form and substance reasonably acceptable to the Collateral Agent, as the same may be amended, modified or supplemented from time to time.
Canadian Dollar” or “Cdn. $” means Canadian Dollars, the lawful currency of Canada.
Canadian Employee” means any employee or former employee of a Canadian Loan Party.
Canadian Employee Benefits Legislation” means the Pension Benefits Standards Act (British Columbia), Pension Benefits Act (Ontario), the Supplemental Pension Plans Act (Québec) and any other Canadian federal, provincial or local counterparts or equivalents, in each case, as applicable and as amended from time to time.
Canadian Excess Availability” means, at any time, (i) the lesser of (x) the Canadian Revolving Credit Facility and (y) (1) the Total Available Canadian Borrowing Base at such time, as determined from the most recent Borrowing Base Certificate delivered by the Borrower Representative to the Administrative Agent pursuant to Section 6.02(m) hereof minus (2) the Utilized Total Available Canadian Borrowing Base at such time, minus (ii) the Total Canadian Revolving Credit Outstandings.
Canadian Finance Obligations” means, at any date, (i) all Senior Credit Obligations in respect of the Canadian Revolving Credit Facility, (ii) all Swap Obligations permitted hereunder then owing under any Canadian Secured Hedge Agreement to any Canadian Hedge Bank and (iii) all Cash Management Obligations then owing under any Canadian Secured Cash Management Agreement to a Cash Management Bank.
Canadian Guarantee” means collectively, the Amended and Restated Canadian Guarantee made by the Canadian Guarantors in favor of the Secured Parties, substantially in the form of Exhibit E-2, together with each other guaranty and guaranty supplement delivered, whether pursuant to Section 6.12 or otherwise.
Canadian Guarantors” means the Canadian Subsidiaries of the Parent Borrower listed on Schedule 6.12 and each other Canadian Subsidiary of the Parent Borrower that shall execute and deliver


 
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an Accession Agreement or other guaranty or guaranty supplement, whether pursuant to Section 6.12 or otherwise.
Canadian Hedge Bank” means any Hedge Bank that is party to a Canadian Secured Hedge Agreement.
Canadian L/C Advance” means, with respect to each Canadian Revolving Credit Lender, such Canadian Revolving Credit Lender’s funding of its participation in any Canadian L/C Borrowing in accordance with its Applicable Adjusted Percentage.
Canadian L/C Borrowing” means an extension of credit resulting from a drawing under any Canadian Letter of Credit which has not been reimbursed on the date when made or refinanced as a Canadian Revolving Credit Borrowing.
Canadian L/C Credit Extension” means, with respect to any Canadian Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
Canadian L/C Issuer” means (i) Toronto Dominion Bank in its capacity as issuer of Canadian Letters of Credit hereunder, and its successor issuer or successors in such capacity, (ii) each Canadian Revolving Credit Lender listed in Schedule 2.03 hereto as the issuer of an Existing Letter of Credit; (iii) Bank of America, N.A. or any of its Affiliates, (iv) Wells Fargo Bank or any of its any branches and Affiliates and (v) any other Revolving Credit Lender which the Borrower Representative shall have designated as a “Canadian L/C Issuer” by prior written notice to the Administrative Agent with the prior written consent of such other Revolving Credit Lender. Each reference herein to Toronto Dominion Bank solely in it capacity as Canadian L/C Issuer, shall be deemed to be the collective reference to Toronto Dominion Bank and Wells Fargo Bank.
Canadian L/C Obligations” means, as of any date of determination, the aggregate amount available to be drawn under all outstanding Canadian Letters of Credit plus the aggregate of all Unreimbursed Amounts in respect of Canadian Letters of Credit, including all Canadian L/C Borrowings. For purposes of computing the amount available to be drawn under any Canadian Letter of Credit, the amount of such Canadian Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Canadian Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Canadian Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
Canadian Letter of Credit” means any standby letter of credit, sight commercial letter of credit or foreign guaranty (or with the consent of Administrative Agent, any similar instrument) issued under the Canadian Revolving Credit Facility.
Canadian Letter of Credit Sublimit” means an amount equal to $35,000,000 (or the Equivalent Amount thereof). The Canadian Letter of Credit Sublimit is part of, and not in addition to, the Canadian Revolving Credit Facility.
Canadian Loan Parties” means the Canadian Borrower and the Canadian Guarantors.
Canadian Overadvance” has the meaning specified in Section 2.01(e).


 
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Canadian Overadvance Loan” means a Canadian Revolving Credit Loan made when a Canadian Overadvance exists or is caused by the funding thereof.
Canadian Overnight Rate” means the Bank of Canada overnight rate, which is the rate of interest charged by the Bank of Canada on one-day loans to financial institutions, for such day.
Canadian Payment Account” means the Canadian Dollar account, the U.S. Dollar account or the Pounds Sterling account of the Administrative Agent to which all monies constituting proceeds of Canadian Collateral shall be transferred from time to time in accordance with the provisions of the Canadian Security Agreement.
Canadian Pension Plan” means a pension plan that is a “registered pension plan” as defined in the Income Tax Act (Canada) or is subject to the funding requirements of Canadian Employee Benefits Legislation in any Canadian jurisdiction, and is sponsored or administered by the Parent Borrower or any of its Subsidiaries and its applicable Canadian Employees, excluding the Canadian Pension Plan maintained by the Government of Canada or the Quebec Pension Plan maintained by the Province of Québec and excluding any Canadian Union Plans.
Canadian Priority Payables” means, at any time, with respect to the Canadian Borrowing Base:
(i)    the amount of all liabilities due and owing by the Canadian Borrower and any other Canadian Loan Party, or the accrued amount for which each of the Canadian Borrower and any other Canadian Loan Party has an obligation to remit, to a Governmental Authority or other Person pursuant to any applicable Law, rule or regulation in respect of: (A) government royalties or pension fund obligations; (B) employment insurance; (C) goods and services taxes, sales taxes, employee income taxes and other taxes payable or to be remitted or withheld; (D) workers’ compensation; (E) vacation or overtime pay; (F) severance, employee deductions or wages; and (G) other like charges and demands; in each case, in respect of which any Governmental Authority or other Person may claim a security interest, hypothec, prior claim, trust or other claim or Lien ranking or capable of ranking prior to or pari passu with one or more of the Liens granted in the Collateral Documents; and
(ii)    the aggregate amount of any other liabilities of the Canadian Borrower and any other Canadian Loan Parties (A) in respect of which a trust has been or may be imposed on any Collateral to provide for payment or (B) which are secured by a security interest, hypothec, prior claim, pledge, charge, right, claim or other Lien on any Collateral, in each case, pursuant to any applicable Law, rule or regulation and which trust, security interest, hypothec, prior claim, pledge, charge, right, claim or other Lien ranks or is capable of ranking prior to or pari passu with one or more of the Liens granted in the Collateral Documents.
Canadian Priority Payables Reserve” means, on any date of determination for the Canadian Borrowing Base, a reserve established from time to time by the Administrative Agent in its reasonable Credit Judgment in such amount as the Administrative Agent may determine reflects the Dollar Equivalent of the unpaid or unremitted Canadian Priority Payables.
Canadian Protective Advances” has the meaning specified in Section 2.01(g).
Canadian Reference Bank” means The Toronto-Dominion Bank or its successor.


 
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Canadian Revolving Credit Borrowing” means a borrowing consisting of simultaneous Canadian Revolving Credit Loans of the same Type and, in the case of Eurocurrency Loans and BA Rate Loans, having the same Interest Period made by each of the Canadian Revolving Credit Lenders pursuant to Section 2.01(b) and shall be deemed to include any Canadian Overadvance Loan and, to the extent attributed to the Canadian Collateral in the Administrative Agent’s Credit Judgment, Protective Advances made hereunder.
Canadian Revolving Credit Commitment” means, as to each Canadian Revolving Credit Lender, its obligation to (i) make Canadian Revolving Credit Loans to the Canadian Borrower pursuant to Section 2.01(b) and (ii) purchase participations in Canadian L/C Obligations and Canadian Swingline Loans of an aggregate principal amount (expressed in Dollars) at any one time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on Schedule 2.01 under the caption “Canadian Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement, in each case, as the same may be increased pursuant to Section 2.13. The Canadian Revolving Credit Commitments are a sublimit of the U.S. Revolving Credit Commitments.
Canadian Revolving Credit Commitment Increase Lender” has the meaning specified in Section 2.13(i)(ii).
Canadian Revolving Credit Exposure” means, with respect to any Appropriate Lender at any time, the Outstanding Amount of Canadian Revolving Credit Loans of such Canadian Revolving Credit Lender plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of Canadian L/C Obligations with respect to Canadian Letters of Credit plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of Canadian Swingline Loans.
Canadian Revolving Credit Facility” means, at any time, the aggregate Dollar Equivalent of the amount of the Canadian Revolving Credit Lenders’ Canadian Revolving Credit Commitments at such time.
Canadian Revolving Credit Lender” means each financial institution listed on Schedule 2.01 as a “Canadian Revolving Credit Lender” (provided that such Person, or an Affiliate of such Person, also has a U.S. Revolving Credit Commitment), as well as any Person that becomes a “Canadian Revolving Credit Lender” (provided that such Person or an Affiliate of such Person also has a U.S. Revolving Credit Commitment) hereunder pursuant to Section 2.13 or 10.06.  Each Canadian Revolving Credit Lender is a financial institution that is listed on Schedule I, II, or III of the Bank Act (Canada) or is not a foreign bank for purposes of the Bank Act (Canada), and if such financial institution is not resident in Canada and is not deemed to be resident in Canada for purposes of the Income Tax Act (Canada), that financial institution deals at arm's length with each Canadian Loan Party for purposes of the Income Tax Act (Canada) (it being understood and agreed that, notwithstanding the foregoing, HSBC Bank USA, National Association shall constitute a Canadian Revolving Credit Lender hereunder and it is not resident in Canada and is not deemed to be resident in Canada for purposes of the Income Tax Act (Canada) and deals at arm’s length with each Canadian Loan Party for purposes of the Income Tax Act (Canada).
Canadian Revolving Credit Loan” has the meaning specified in Section 2.01(b) and shall be deemed to include any Canadian Overadvance Loan and, to the extent attributed to the Canadian Collateral in the Administrative Agent’s Credit Judgment, Canadian Protective Advance made hereunder.


 
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Canadian Secured Cash Management Agreement” means any Secured Cash Management Agreement that is entered into by and between any Canadian Loan Party or any Foreign Subsidiary of a Loan Party and any Canadian Cash Management Bank.
Canadian Secured Hedge Agreement” means any Secured Hedge Agreement that is entered into by and between any Canadian Loan Party or any Foreign Subsidiary of a Loan Party and any Canadian Hedge Bank.
Canadian Secured Hedge Reserve” means, on any date of determination, with respect to the Canadian Borrowing Base, the aggregate amount of reserves established by the Administrative Agent from time to time in its Credit Judgment in respect of Canadian Finance Obligations under Canadian Secured Hedge Agreements, which shall be equal to the sum of the Dollar Equivalents of all such Canadian Finance Obligations as reported to the Administrative Agent by each Canadian Hedge Bank from time to time.
Canadian Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Canadian Revolving Credit Lenders, each Canadian L/C Issuer, the Canadian Hedge Banks, the Canadian Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons to whom the Canadian Finance Obligations are owing and which are, or are purported to be, secured by the Canadian Collateral under the terms of the Canadian Collateral Documents.
Canadian Security Agreement” means the Amended and Restated Security Agreement, substantially in the form of Exhibit F-2 hereto, among Masonite Inc., the Parent Borrower, the Canadian Guarantors and the Collateral Agent, as the same may be amended, modified or supplemented from time to time.
Canadian Subsidiary” means any direct or indirect Subsidiary of the Parent Borrower which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.
Canadian Swingline Borrowing” means a Borrowing consisting of Canadian Swingline Loans.
Canadian Swingline Lender” means WFCF Canada and its successors and assigns.
Canadian Swingline Loan” has the meaning specified in Section 2.01(i).
Canadian Swingline Sublimit” means an amount equal to $25,000,000 or the Equivalent Amount thereof. The Canadian Swingline Sublimit is part of, and not in addition to, the Canadian Revolving Credit Facility.
Canadian Union Plan” means any registered pension plan for the benefit of Canadian Employees that is not maintained, sponsored or administered by a Canadian Loan Party, but to which a Canadian Loan Party is required to contribute pursuant to a collective agreement or participation agreement.
Capital Lease” of any Person means any lease of (or other arrangement conveying the right to use) property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP (without giving effect to ASC 842), be required to be accounted for as a capital lease on the balance sheet of such Person.


 
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Capital Lease Obligations” means, with respect to any Person, all obligations of such Person as lessee under Capital Leases, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP as in effect on the Restatement Effective Date.
Cash Collateral Account” means a blocked, non-interest bearing deposit account of one or more of the Loan Parties at Wells Fargo Bank (or another commercial bank selected in compliance with Section 6.16) in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent, subject to the appropriate Depositary Bank Agreement.
Cash Collateralize” has the meaning specified in Section 2.03(g).
Cash Dominion Event” means either (i) the occurrence and continuance of a Specified Default or (ii) the failure of the Loan Parties to maintain Excess Availability of at least 10% of the Revolving Credit Facility for five consecutive Business Days. For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing (i) so long as such Specified Default is continuing and has not been cured, waived or otherwise remedied, and/or (ii) if the Cash Dominion Event arises under clause (ii) above, until (1) Excess Availability exceeds 10% of the Revolving Credit Facility for thirty consecutive days and (2) the Administrative Agent shall have received the most current Borrowing Base Certificate which reflects that Excess Availability exceeds the greater of such amounts for such 30 consecutive day period. In each case of clause (i) and (ii) above, if such Cash Dominion Event is no longer continuing (a “Cash Dominion Termination”), such Cash Dominion Event shall terminate immediately other than in respect of any U.K. Loan Party.
Cash Dominion Termination” has the meaning set forth in the definition of “Cash Dominion Event”.
Cash Equivalents” means, as at any date of determination, any of the following types of Investments:
(1)securities issued or directly and fully guaranteed or insured by the United States or any agency, instrumentality or sponsored corporation thereof and backed by the full faith and credit of the United States, and in each case having maturities of not more than 12 months from the date of acquisition;
(2)    U.S. Dollar denominated time deposits, certificates of deposit, overnight bank deposits and bankers’ acceptances having maturities within one year from the date of acquisition thereof issued by any lender under this Agreement or any commercial bank of recognized standing, having capital and surplus in excess of $250,000,000;
(3)    repurchase obligations for underlying securities of the types described in clauses (1) and (2) above and entered into with any commercial bank meeting the qualifications specified in clause (2) above;
(4)    other investment instruments having maturities within 180 days from the date of acquisition thereof issued by financial institutions having capital and surplus in excess of $500,000,000;
(5)    readily marketable direct obligations issued by any state of the United States or any political subdivision thereof having maturities within 180 days from the date of acquisition thereof and having, at the time of acquisition thereof, one of the two highest rating categories obtainable from


 
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either Moody’s or S&P (or if at such time neither is issuing ratings, then a comparable rating of another NRSRO);
(6)    commercial paper rated, at the time of acquisition thereof, at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another NRSRO), in each case maturing within one year after the date of acquisition;
(7)    investments in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (6) above;
(8)    repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority Lien (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations;
(9)    in the case of any Foreign Subsidiary, (x) certificates of deposit or bankers’ acceptances, in each case maturing not more than one year from the date of acquisition by such Foreign Subsidiary, of any bank organized under the laws of the United States, Canada, Chile, Japan, Mexico or any country that is, or was as of the Restatement Effective Date, a member of the European economic and monetary union and either (i) whose short term commercial paper, at the time of acquisition thereof, is rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another NRSRO), or, if no such commercial paper rating is available, a long-term debt rating, at the time of acquisition thereof, of at least A or the equivalent thereof by S&P or at least A-2 or the equivalent thereof by Moody’s (or if at such time neither is issuing ratings, then a comparable rating of another NRSRO), or (ii) having capital and surplus in excess of $250,000,000, (y) overnight deposits and demand deposit accounts maintained with any bank that such Foreign Subsidiary regularly transacts business and (z) securities of the type and maturity described in clause (1) above but issued by the principal governmental authority in which such Foreign Subsidiary is organized so long as such security has the highest rating available from either S&P or Moody’s;
(10)    Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of one year or less from the date of acquisition; and
(11)    U.S. Dollars, Canadian Dollars, Japanese yen, Pounds Sterling, Euros or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business.
Cash Management Agreement” means any agreement to provide (a) cash management services (other than Letters of Credit or Swap Contracts), including treasury, depository, controlled disbursement, lockbox, overdraft, credit or debit card, electronic funds transfer, automated clearinghouse transfer, wire transfer, e-payable services, information reporting, stop payment services, and other cash management arrangements, and (b) other banking products or services (other than Letters of Credit or Swap Contracts), including purchase cards or stored value cards.
Cash Management Bank” means a U.S. Cash Management Bank, a Canadian Cash Management Bank and/or a U.K. Cash Management Bank, as the context may require.


 
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Cash Management Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person under or in respect of a Cash Management Agreement.
Cash Management Reserve” means, on any date of determination, the aggregate amount of reserves established by the Administrative Agent from time to time in its Credit Judgment against the U.S. Borrowing Base, the Canadian Borrowing Base or the U.K. Borrowing Base in respect of Cash Management Obligations, which shall not exceed the sum of the Dollar Equivalent of all Cash Management Obligations as reported to the Administrative Agent by each Cash Management Bank.
Casualty” means any casualty, loss, damage, destruction or other similar loss with respect to real or personal property or improvements.
Casualty Insurance Policy” means any insurance policy maintained by any Group Company covering losses with respect to Casualties.
CCAA” means the Companies’ Creditors Arrangement Act (Canada) and any rule or regulation issued thereunder, in effect from time to time.
CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, guideline, rule or directive (whether or not having the force of law) by any Governmental Authority. The Dodd-Frank Wall Street Reform and Consumer Protection Act, the Basel Committee on Banking Supervision and all requests, rules, guidelines or directives promulgated thereunder or in connection therewith shall be deemed to have gone into effect after the date hereof regardless of the date actually enacted, adapted, promulgated or issued.
Change of Control” means the occurrence of any of the following events:
(i)    (A) the Parent Borrower shall cease, directly or indirectly, to own and control legally and beneficially 100% of the Equity Interests of the Borrowers (other than the Parent Borrower) on a fully diluted basis assuming the conversion and exercise of all outstanding Equity Equivalents (whether or not such securities are then currently convertible or exercisable); or
(ii)    any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) or “offeror” (as defined in section 1.1 (Definitions) of Multilateral Instrument 62-104 – Take Over Bids and Issuer Bids applicable in the Province of British Columbia, Canada) has become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act or under the Securities Act (British Columbia), as applicable), except that a person or group shall be deemed to have “beneficial ownership” of all securities that any such person or group has the right to acquire upon the conversion or exercise of outstanding Equity Equivalents (whether or not such securities are then currently convertible or exercisable), directly or indirectly, by way of merger, consolidation or otherwise, of more than 50% of the Voting


 
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Securities of the Parent Borrower on a fully-diluted basis after giving effect to the conversion and exercise of all outstanding Equity Equivalents (whether or not such securities are then currently convertible or exercisable); or
(iii)    during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent Borrower ceases to be composed of individuals (x) who were members of that board or equivalent governing body on the first day of such period, (y) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (x) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (z) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (x) and (y) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (y) and clause (z), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or
(iv)    any “Change of Control” under the Note Documents.
Civil Code” means the Civil Code of Québec.
Code” means the Internal Revenue Code of 1986, as amended.
Collateral” means the U.S. Collateral, the Canadian Collateral and the U.K. Collateral.
Collateral Agent” means Wells Fargo Bank, in its capacity as collateral agent and/or security trustee for the Secured Parties under the Collateral Documents, and its successor or successors in such capacity.
Collateral Documents” means the U.S. Collateral Documents, the Canadian Collateral Documents and the U.K. Collateral Documents.
Committed Loan Notice” means a notice of (i) a Borrowing, (ii) a conversion of Revolving Credit Loans from one Type to the other or (iii) a continuation of Eurocurrency Loans or BA Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A-1.
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended, the rules and regulations promulgated thereunder, and any successor statute.
Compliance Certificate” means a certificate substantially in the form of Exhibit D.
Condemnation” means any taking by a Governmental Authority of property or assets, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or in any other manner.
Condemnation Award” means all proceeds of any Condemnation or transfer in lieu thereof.


 
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Consolidated Capital Expenditures” means, for any period, the aggregate amount of all expenditures (whether paid in cash or other consideration or accrued as a liability) that would, in accordance with GAAP, be included as “additions to property, plant and equipment” and other capital expenditures of the Parent Borrower and its Consolidated Restricted Subsidiaries for such period, as the same are or would be set forth in a consolidated statement of cash flows of the Parent Borrower and its Consolidated Restricted Subsidiaries for such period (including that portion of Capital Leases that is capitalized on the consolidated balance sheet of the Parent Borrower and its Consolidated Restricted Subsidiaries), but excluding, without duplication (to the extent that they would otherwise be included):
(i)    any such expenditures made for the replacement or restoration of assets to the extent paid for by any Casualty Insurance Policy or Condemnation Award with respect to the asset or assets being replaced or restored to the extent such expenditures are permitted under the Loan Documents;
(ii)    any such expenditures to the extent the Parent Borrower or any of its Consolidated Restricted Subsidiaries has received reimbursement in cash from a third party other than the Parent Borrower or one or more of its Consolidated Restricted Subsidiaries and for which none of the Parent Borrower or any of its Consolidated Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person;
(iii)    the book value of any asset owned by the Parent Borrower or a Consolidated Restricted Subsidiary prior to or during such period which is included as an addition to property, plant and equipment or other capital expenditures of the Parent Borrower and its Consolidated Restricted Subsidiaries for such period as a result of one or more of them reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period except that, for purposes of this clause (iii), (A) any expenditure necessary in order to permit such asset to be reused shall be included as Consolidated Capital Expenditures during the period that such expenditure is actually made and (B) such book value shall have been included in Consolidated Capital Expenditures when such asset was originally acquired;
(iv)    the purchase price of assets purchased during such period to the extent the consideration therefor consists of any combination of (A) assets traded in at the time of such purchase and (B) the proceeds of a concurrent sale of assets, in each case in the ordinary course of business;
(v)    the purchase price of assets purchased substantially contemporaneously with the trade-in of existing assets to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded in at such time;
(vi)    any such expenditures made with the proceeds of the issuance of Equity Interests or the incurrence of any Indebtedness (other than the Revolving Credit Loans) permitted under this Agreement;
(vii)    expenditures which constitute consideration paid in respect of Permitted Acquisitions and other Investments permitted under Section 7.03 (xix) and (xx); and


 
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(viii)    any such expenditures made in connection with the consummation of the MACT Transaction.
Consolidated Cash Dividends” means at any date the aggregate amount of all Restricted Payments paid in cash by the Parent Borrower or by any Restricted Subsidiary of the Parent Borrower to any Person other than the Parent Borrower or a Wholly-Owned Subsidiary of the Parent Borrower that is a Restricted Subsidiary during the most recently completed Measurement Period.
Consolidated Cash Interest Expense” means at any date Consolidated Interest Expense that has been paid or is payable in cash for the most recently completed Measurement Period, other than (to the extent, but only to the extent, included in the determination of Consolidated Interest Expense for such period in accordance with GAAP): (i) amortization of debt discount and debt issuance fees and (ii) amortization of financing fees (including underwriting fees and expenses paid in connection with the consummation of the Transaction or Permitted Acquisitions).
Consolidated Cash Taxes” means at any date (i) the aggregate amount of all taxes based on income of the Parent Borrower and its Consolidated Restricted Subsidiaries for the most recently completed Measurement Period to the extent the same are paid in cash by the Parent Borrower or any Consolidated Restricted Subsidiary of the Parent Borrower during such period less (ii) tax refunds (whether with respect to such period or any prior period) actually received during such period; provided that in no event shall the amount of Consolidated Cash Taxes for any Measurement Period be less than zero.
Consolidated EBITDA” means, for any Measurement Period, with respect to the Parent Borrower and its Consolidated Restricted Subsidiaries, the sum, without duplication, of the amounts for such Measurement Period of:
(a)    Consolidated Net Income (excluding therefrom any extraordinary items of gain or loss); plus without duplication, those amounts which, in the determination of Consolidated Net Income for such period, have been deducted for:
(i)    Consolidated Interest Expense;
(ii)    lease expense in respect of Synthetic Lease Obligations, Sale/Leaseback Transactions and other indebtedness accounted for as Operating Leases under GAAP;
(iii)    provisions for Taxes based on income and franchise Taxes (to the extent based on income);
(iv)    total depreciation expense;
(v)    total amortization expense;
(vi)    other non-cash items (other than any such non-cash item to the extent it represents amortization of a prepaid cash expense that was paid in a prior period or an accrual of or reserve for cash expenditures in any future period), including without limitation non-cash rent expense, non-cash expense from any employee benefit plan or equity plan, non-cash loss on sale or disposition of assets, non-cash loss from impairment of assets and non-cash expenses arising out of purchase accounting adjustments with respect to re-valuing assets and liabilities;


 
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(vii)    non-recurring or extraordinary expenses, losses or charges;
(viii)    [reserved];
(ix)    unrealized gains and losses on derivative transactions;
(x)    any fees, costs, expenses or charges (other than depreciation or amortization expense) related to any Sale of Equity Interests of the Parent Borrower or any investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by the Note Indentures (including a refinancing thereof) (in each case, whether or not successful), including without limitation (i) such fees, expenses or charges related to the offering of the notes governed by the Note Indentures and the Revolving Credit Facility, any dividend recapitalization or other transactions effecting the return of capital to shareholders and any SEC registration and (ii) any amendment or modification of the Note Documents or the Loan Documents;
(xi)    (A) the amount of any restructuring charges, integration costs or other business optimization expenses or reserves deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs (including costs related to the closure and/or consolidation of facilities) incurred in connection with acquisitions after the Restatement Effective Date, and (B) the amount of any fees and expenses incurred in connection with plant closures or layoffs deducted (and not added back) in accordance with GAAP in such period in computing Consolidated Net Income;
(xii)    the amount of net cost savings projected by the Borrowers in good faith to be realized as a result of specified actions taken or initiated during or prior to such Measurement Period (calculated on a pro forma basis as though such cost savings had been realized on the first day of such Measurement Period), net of the amount of actual benefits realized during such Measurement Period from such actions; provided that (x) such cost savings are reasonably identifiable and factually supportable, and (y) the aggregate amount of cost savings added pursuant to this clause shall not exceed the greater of $20,000,000 or 15% of Consolidated EBITDA for any four consecutive quarter period;
(xiii)    any costs or expenses incurred pursuant to any equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Borrowers or net cash proceeds of the issuance of common stock or other common Equity Interests of the Borrowers (other than Disqualified Stock);
(xiv)    the amount of any minority interest expense deducted in such period in calculating Consolidated Net Income; and
(xv)    to the extent actually reimbursed (and to the extent such reimbursement proceeds are not included in calculating Consolidated Net Income), expenses incurred to the extent covered by indemnification provisions in any agreement in connection with an acquisition; minus


 
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(b)    any amount which, in the determination of Consolidated Net Income for such period, has been added for (A) interest income and (B) any non-cash income or non-cash gains, all as determined in accordance with GAAP.
For purposes of calculating Consolidated EBITDA for any Measurement Period pursuant to any determination of the Fixed Charge Coverage Ratio, if during such Measurement Period (or in the case of pro-forma calculations, during the period from the last day of such Measurement Period to and including the date as of which such calculation is made) any of the Parent Borrower or any of its Restricted Subsidiaries shall have made an asset disposition or an acquisition, Consolidated EBITDA for such Measurement Period shall be calculated after giving effect thereto on a Pro-Forma Basis.
Consolidated Fixed Charges” means at any date the sum of (i) Consolidated Cash Interest Expense for the most recently completed Measurement Period plus (ii) Consolidated Scheduled Debt Payments for such period plus (iii) Consolidated Cash Taxes for such period plus (iv) Consolidated Cash Dividends for such period (including any Consolidated Cash Dividend made in the form of a loan or advance as contemplated by the last paragraph of Section 7.06), but excluding any Consolidated Cash Dividend paid pursuant to Section 7.06(x).
Consolidated Funded Indebtedness” means at any date the Funded Indebtedness of the Parent Borrower and its Consolidated Restricted Subsidiaries as of such date, determined on a consolidated basis.
Consolidated Interest Expense” means at any date the total interest expense of the Parent Borrower and its Consolidated Restricted Subsidiaries for the most recently completed Measurement Period, whether paid or accrued and whether or not capitalized, (including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments (but excluding non-cash interest expense attributable solely to changes in the mark-to-market valuation of Swap Obligations in accordance with GAAP), the interest component of all payments under Capital Leases in accordance with GAAP, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances and net costs in respect of Swap Obligations constituting interest rate swaps, collars, caps or other arrangements requiring payments contingent upon interest rates of the Parent Borrower and its Consolidated Restricted Subsidiaries), net of interest income, but excluding (i) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (ii) any expensing of bridge, commitment and other financing fees and (iii) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Factoring Arrangements.
Consolidated Net Income” means at any date the net income (or net loss) after taxes of the Parent Borrower and its Consolidated Restricted Subsidiaries for the most recently completed Measurement Period, determined on a consolidated basis, computed in accordance with GAAP; provided that there shall be excluded from the calculation of Consolidated Net Income for such Measurement Period, without duplication, (i) the cumulative effect of a change in accounting principles during such period, whether effected through a cumulative effect adjustment or a retroactive application in each case in accordance with GAAP, (ii) any net gain or loss resulting in such period from Swap Obligations, (iii) any net after-tax income or loss from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations, (iv) any net after-tax extraordinary gains or losses or any non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including, but not limited to, any expenses relating to severance, relocation and one-time compensation charges and any expenses directly attributable to the implementation of cost-saving


 
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initiatives), (v) any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or the sale or other disposition of any Equity Interests of any Person other than in the ordinary course of business as determined in good faith by the Parent Borrower, (vi) the net income or loss of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting; provided, that, Consolidated Net Income of such Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the Parent Borrower and its Consolidated Restricted Subsidiaries, (vii) any increase in amortization or depreciation or other noncash charges resulting from the application of purchase accounting in relation to any acquisition that is consummated after the Restatement Effective Date, net of taxes, (viii) any net after-tax income (or loss) from the early extinguishment of Indebtedness or Swap Obligations or other derivative instruments, (ix) any impairment charge or asset write-off, in each case pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP and (x) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness, including intercompany Indebtedness.
Consolidated Restricted Subsidiary” means with respect to any Person at any date, any Restricted Subsidiary of such Person, the accounts of which would be consolidated with those of such Person in its consolidated financial statements if such statements were prepared as of such date in accordance with GAAP.
Consolidated Scheduled Debt Payments” means at any date for the most recently completed Measurement Period, the sum of all scheduled payments of principal on all Consolidated Funded Indebtedness (including, without limitation, the principal component of Capital Lease Obligations, Purchase Money Indebtedness and Synthetic Lease Obligations (regardless of whether accounted for as indebtedness under GAAP) of the Parent Borrower and its Consolidated Restricted Subsidiaries (as such scheduled principal payments (x) may be reduced as a result of any voluntary or mandatory prepayments of the principal amounts of such Indebtedness for such period or any prior period or (y) otherwise adjusted pursuant to the terms of this Agreement)), but excluding payments due on Revolving Credit Loans during such period and payments due in such period to the extent refinanced and due in a subsequent period through the incurrence of additional Indebtedness expressly permitted under Section 7.02.
Consolidated Subsidiary” means with respect to any Person at any date any Subsidiary of such Person or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements if such statements were prepared as of such date in accordance with GAAP.
Consolidated Total Assets” means, as of any date of determination, for the Parent Borrower and its Consolidated Restricted Subsidiaries, total assets as determined in accordance with GAAP.
Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Contribution Notice means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.
Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.


 
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Covenant Trigger Event” means, at any time, the failure of the Loan Parties to maintain Excess Availability equal to or greater than the Aggregate Compliance Threshold. For purposes of this Agreement, the occurrence of a Covenant Trigger Event shall be deemed continuing until the Excess Availability exceeds the Aggregate Compliance Threshold for thirty consecutive days.
Credit Extension” means each of the following: (i) a Borrowing, and (ii) an L/C Credit Extension.
Credit Judgment” means a determination made by the Administrative Agent in good faith and in the exercise of its reasonable (from the perspective of a secured lender) business judgment based on how an asset-based lender with similar rights providing a credit facility of the type provided under this Agreement would act in similar circumstances at the time with the information then available to it. In exercising such judgment, the Administrative Agent may consider any factors that could materially increase the credit risk of lending to the Borrowers on the security of the Collateral.
CTA” means the United Kingdom Corporation Tax Act 2009.
Debt Equivalents” of any Person means any Equity Interest of such Person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event or otherwise, (i) matures (excluding any maturity as the result of an optional redemption by the issuer thereof), is mandatorily redeemable or is subject to any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, on or prior to the date that is 180 days after the Maturity Date, (ii) is convertible into or exercisable or exchangeable for debt securities or Equity Interests described in the foregoing clause (i) at any time prior to the date that is 180 days after the Maturity Date, (iii) is redeemable or subject to any repurchase requirement arising at the option of the holder thereof, in whole or in part, on or prior to the date that is 180 days after the Maturity Date, (iv) requires the payment of any dividends (other than the payment of dividends solely in the form of Equity Interests) prior to the date that is 180 days after the Maturity Date or (v) provides the holders of such Equity Interest with any rights to receive any cash upon the occurrence of a change in control prior to the date that is 180 days after the Maturity Date, unless the rights to receive such cash are contingent upon the prior payment in full in cash of the Senior Credit Obligations. Debt Equivalents shall not include any Equity Interests which would not otherwise constitute Debt Equivalents but for a requirement that such Equity Interests be redeemed in connection with (A) a change of control or (B) any asset disposition made pursuant to the terms hereof or otherwise permitted by the Administrative Agent.
Debt Issuance” means the issuance or incurrence by any Group Company of any Indebtedness.
Debtor Relief Laws” means the Bankruptcy Code, the CCAA, the BIA, the Winding-Up and Restructuring Act (Canada) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, winding-up, reorganization, or similar debtor relief Laws of the United States, Canada, any province of Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, including any proceeding for the compromise or arrangement of creditor claims pursuant to the arrangement or reorganization provisions of any corporate statute.
Deed of Hypothec” means collectively, the Deed of Hypothec dated May 13, 2011 between the Canadian Borrower and the Collateral Agent, acting as fondé de pouvior for the benefit of itself and the other Secured Parties, as the same may be amended, modified, replaced or supplemented from time to time, together with each additional deed of hypothec executed and delivered pursuant to this Agreement.


 
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Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means (i) when used with respect to Senior Credit Obligations other than Letter of Credit Fees, an interest rate equal to (A) the U.S. Base Rate plus (B) the Applicable Rate, if any, applicable to U.S. Base Rate Loans plus (C) 2.00% per annum; provided, however, that with respect to a Eurocurrency Loan, a U.K. Base Rate Loan or a Canadian Base Rate Loan the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Eurocurrency Loan, U.K. Base Rate Loan or Canadian Base Rate Loan plus 2.00% per annum, and (ii) when used with respect to Letter of Credit Fees, a rate equal to (A) the Letter of Credit Fee plus (B) 2.00% per annum.
Defaulted Amount” has the meaning specified in Section 2.11(b)(iii).
Defaulting Lender” means a Revolving Credit Lender during the period and only for so long as a Lender Default is in effect with respect to such Revolving Credit Lender.
Defined Benefit Plan” means any Canadian Pension Plan which contains a “defined benefit provision” as defined in subsection 147.1(1) of the Income Tax Act (Canada).
Delaware LLC” shall mean any limited liability company organized or formed under the laws of the State of Delaware.
Delaware LLC Division” shall mean the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
Depositary Bank Agreement” means a U.S. Depositary Bank Agreement, a Canadian Depositary Bank Agreement and/or a U.K. Depositary Bank Agreement, as the context may require.
Designated Noncash Consideration” means the fair market value of noncash consideration received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition as determined by the Parent Borrower in good faith that is so designated as Designated Noncash Consideration pursuant to a certificate, setting forth the basis of such valuation, executed by an executive vice president and the principal financial officer of the Parent Borrower (or a parent company thereof), less the amount of cash or Cash Equivalents received in connection with a subsequent sale of disposition of such Designated Noncash Consideration.
Dilution Percent” means with respect to the Loan Parties, during any period of twelve consecutive months, the quotient (expressed as a percentage) and determined after any completed Field Examination or audit with respect to such period of (i) the aggregate amount of bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to accounts and other receivables for such period, divided by (ii) gross sales for such period.
Dilution Reserve” means a reserve established by the Administrative Agent from time to time in its Credit Judgment based on the most recent Field Examination not to exceed the amount calculated on the basis of the then applicable Dilution Percent minus 5.00%.
Disposition” or “Dispose” means the sale, transfer, license, sublicense, abandonment, lease or other disposition of any property by any Person (including any Sale/Leaseback Transaction and any sale of Equity Interests, but excluding any issuance by such Person of its own Equity Interests), including any


 
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sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that sales, transfers or dispositions of assets (other than IP Rights) shall not constitute a “Disposition” to the extent the aggregate value of such assets sold, transferred, licensed, sublicensed, abandoned, leased or otherwise disposed of does not exceed (x) $10,000,000 for a single transaction or a series of related transactions and (y) $20,000,000 in any fiscal year.
Disqualified Stock” means, with respect to any Person, any capital stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for capital stock that is not Disqualified Stock), other than as a result of a change of control or asset sale, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, other than as a result of a change of control or asset sale, in whole or in part, in each case prior to the date that is 91 days after the Maturity Date.
Divided Delaware LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
Dollar Equivalent” means, at any time, (i) with respect to any amount denominated in Dollars, such amount, and (ii) with respect to any amount denominated in any other currency, the Equivalent Amount thereof in Dollars as reasonably determined by the Administrative Agent or the L/C Issuers, as the case may be, at such time on the basis of the Spot Rate in accordance with Section 1.07.
Dollars” and “$” means lawful money of the United States.
Domestic Subsidiary” means with respect to any Person each Subsidiary of such Person that is organized under the laws of the United States or any political subdivision thereof, and “Domestic Subsidiaries” means any two or more of them.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway and in the event of a withdrawal by the United Kingdom from the European Union, the United Kingdom.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).
Eligible Collateral” means, collectively, Eligible Inventory and Eligible Receivables.


 
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Eligible In-Transit Inventory” means Inventory owned by, or as to which title has passed to, a Loan Party that would be Eligible Inventory (but for its location) that has been shipped (i) from a Person (a “Vendor”) within the United States, Canada or the United Kingdom or (ii) from a location outside the United States, Canada or the United Kingdom of any Loan Party, as the case may be, in each case for receipt at a location of any Loan Party within the United States, Canada or the United Kingdom within 15 days of shipment (“In-Transit Inventory”), and that the Administrative Agent, in its Credit Judgment (subject to the last sentence of this definition), deems to be Eligible In-Transit Inventory. Without limiting the foregoing, no Inventory shall be Eligible In-Transit Inventory unless it:
(i)    in the case of Inventory shipped by a Vendor located outside the United States, Canada or the United Kingdom to a Loan Party pursuant to an open-account purchase, is subject to a negotiable document of title showing the applicable Loan Party as consignee, which document is indorsed to the Administrative Agent and in the possession of the Administrative Agent or such other Person (including any Borrower) as the Administrative Agent shall approve;
(ii)    in the case of Inventory not shipped by a Vendor located outside the United States, Canada or the United Kingdom to a Loan Party pursuant to an open-account purchase, is subject to a non-negotiable document of title showing the Administrative Agent (or, with the consent of the Administrative Agent, the applicable Loan Party) as consignee, which document is in possession of the Administrative Agent or such other Person (including any Borrower) as the Administrative Agent shall approve;
(iii)    is insured in a manner consistent with this Agreement and the Security Agreements;
(iv)    has been identified to the applicable sales contract;
(v)    is subject to purchase orders and other sale documentation reasonably satisfactory to the Administrative Agent; and
(vi)    is being handled by a customs broker, freight forwarder or other handler that has delivered a Lien Waiver.
Except for purposes of determining compliance with Section 4.02(d), no new classes of ineligible In-Transit Inventory may be established and no ineligibility criteria set forth above may be changed except upon not less than five Business Days’ notice to the Parent Borrower (unless an Event of Default exists, in which event no notice shall be required). The Administrative Agent will be available during such period to discuss any such proposed new class of ineligible In-Transit Inventory or such proposed change to the ineligibility criteria with the Borrowers and, without limiting the right of the Administrative Agent to establish such new class of ineligible In-Transit Inventory or change such ineligibility criteria in the Administrative Agent’s Credit Judgment, the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such ineligibility no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent.
Eligible Inventory” means Inventory (including raw materials) of the Loan Parties subject to the Lien of the Collateral Documents that the Administrative Agent, in its Credit Judgment (subject to the last sentence of this definition) deems to be Eligible Inventory. The value of Eligible Inventory shall be determined by taking into consideration, among other factors, the lower of its cost and its book value determined in accordance with GAAP and excluding any portion of cost attributable to intercompany


 
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profit among the Loan Parties and their Affiliates. Without limiting the generality of the foregoing, none of the following classes of Inventory shall be deemed to be Eligible Inventory:
(i)    Inventory located on leaseholds unless a Rent and Charges Reserve has been established therefor or the landlord thereof has executed a Lien Waiver;
(ii)    Inventory that is slow-moving, obsolete, unusable, shopworn or otherwise unavailable for sale or that is a discontinued product or component thereof and is not immediately usable in a continuing product;
(iii)    Inventory consisting of promotional, marketing, packaging or shipping materials and supplies;
(iv)    Inventory consisting of replacement parts, subassemblies, manufacturing supplies, samples, prototypes, displays or display items, bill and hold goods, goods that are returned or marked for return, repossessed goods, defective or damaged goods, goods held on consignment, or goods which are neither of a type held for sale in the ordinary course of business nor of a type held for sale in the ordinary course of a new business acquired in Permitted Acquisitions;
(v)    Inventory that fails to meet all applicable standards imposed by any Governmental Authority having regulatory authority over such Inventory or its use or sale or that constitutes Hazardous Materials;
(vi)    Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party (A) from which the Borrowers or any of their Subsidiaries has received written notice of a dispute in respect of any such agreement and to the extent the dispute could reasonably be expected to affect the salability of such Inventory, or (B) unless such Inventory can be freely sold by the Administrative Agent upon the occurrence and during the continuance of an Event of Default despite such agreement;
(vii)    Inventory located outside the United States, the United Kingdom or Canada, except for Eligible In-Transit Inventory;
(viii)    Inventory that is not in the possession of or under the sole control of any Loan Party, except for Eligible In-Transit Inventory;
(ix)    Inventory that is paint, glue or work in progress;
(x)    Inventory not on a perpetual schedule;
(xi)    Inventory the value of which is reduced by purchase price variances, lower of cost or market adjustments or revaluation reserves (but only to the extent of such variances, market adjustments or revaluation reserves);
(xii)    Inventory generated as a result of capitalized direct labor and capitalized overhead variances from standard by location (but only to the extent such variance is actually recorded);


 
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(xiii)    Inventory whose value is offset by shrinkage or test count shortfall reserves (but only to the extent of such offset);
(xiv)    in the case of Inventory of any U.K. Loan Party, Inventory that is not solely owned by such U.K. Loan Party or Inventory that such U.K. Loan Party does not have good and valid title thereto including pursuant to retention of title arrangements;
(xv)    Inventory with respect to which the representations and warranties set forth in Article III of the Security Agreement applicable to Inventory are not correct in any material respect; and
(xvi)    Inventory in respect of which the Security Agreements, after giving effect to the related filings of financing statements or recordations that have then been made, if any, do not or have ceased to create a valid and perfected first priority Lien, security interest or hypothec in favor of the Collateral Agent, on behalf of the Secured Parties, securing the Finance Obligations.
Except for purposes of determining compliance with Section 4.02(d), no new classes of ineligible Inventory may be established and no ineligibility criteria set forth above may be changed except upon not less than five Business Days’ notice to the Parent Borrower (unless an Event of Default exists, in which event no notice shall be required). The Administrative Agent will be available during such period to discuss any such proposed new class of ineligible Inventory or such proposed change to the ineligibility criteria with the Borrowers and, without limiting the right of the Administrative Agent to establish such new class of ineligible Inventory or change such ineligibility criteria in the Administrative Agent’s Credit Judgment, the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such ineligibility no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent.
Eligible Receivables” means Receivables of the Loan Parties subject to the Lien of the Collateral Documents that the Administrative Agent, in its Credit Judgment (subject to the last sentence of this definition) deems to be Eligible Receivables. The value of Eligible Receivables shall be determined by taking into consideration, among other factors, their book value determined in accordance with GAAP. Without limiting the generality of the foregoing, none of the following classes of Receivables shall be deemed to be Eligible Receivables:
(i)    Receivables that do not arise out of sales of goods or rendering of services in the ordinary course of business of the applicable Loan Party;
(ii)    Receivables payable other than in Dollars, Canadian Dollars or Pounds Sterling or that are otherwise on terms other than those normal or customary in the business of the applicable Loan Party;
(iii)    Receivables owing from any Person that is an Affiliate of any Borrower;
(iv)    Receivables more than 120 days past original invoice date or more than 60 days past the original date due;
(v)    Receivables owing from any Person from which an aggregate amount of more than 50% of the Receivables owing therefrom is more than 60 days past the original date due;


 
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(vi)    Receivables owing from any Person that exceed the Receivables Concentration Limit applicable to such Person but only to the extent of such excess;
(vii)    Receivables owing from any Person that (A) has disputed liability for any Receivable owing from such Person; provided that for purposes of this subclause (vii)(A), such Receivables shall be excluded only to the extent of the amounts being disputed by such Person at any date of determination, or (B) has otherwise asserted any claim, demand or liability against the Loan Parties, whether by action, suit, counterclaim or otherwise, unless the Administrative Agent has determined, in its Credit Judgment that such claims demands or liabilities are not material to the determination of eligibility of the Receivables owing from such Person;
(viii)    Receivables owing from any Person that shall take or be the subject of any action or proceeding of a type described in Section 8.01(f) or (g) unless such Receivables are either (x) pre-petition Receivables the payment of which (in full in cash) has been specifically authorized by a final, non-appealable order of a bankruptcy court exercising jurisdiction over such Person and all conditions to payment of such pre-petition Receivables having been satisfied or (y) post-petition Receivables deemed to be Eligible Receivables by the Administrative Agent in its Credit Judgment (it being understood that any representation or deemed representation by any Loan Party in any Loan Document as to the solvency or financial condition of any such Person or as to the eligibility of Receivables owing from any such Person shall be made by such Loan Party only to the extent of its actual knowledge thereof);
(ix)    Receivables (A) owing from any Person that is also a supplier to or creditor of the Loan Parties unless such Person has waived any right of setoff in a manner acceptable to the Administrative Agent, (B) owing from any Person who is on a payment plan with any Loan Party (but only to the extent of the Receivables related to such payment plan ), (C) owing from any Person who is subject to cash in advance payment terms (but only to the extent of the Receivables related to such cash in advance payment terms) or (D) representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling the Loan Parties or any of their Subsidiaries to discounts on future purchase therefrom;
(x)    Receivables arising out of sales to account debtors outside the United States, Canada or the United Kingdom unless such Receivables are fully backed by an irrevocable letter of credit on terms, and issued by a financial institution, reasonably acceptable to the Administrative Agent and such irrevocable letter of credit is in the possession of the Administrative Agent;
(xi)    Receivables (A) arising out of sales on a bill-and-hold, guaranteed sale, sale-or-return, sale on approval or consignment basis, (B) subject to any right of return outside of the ordinary course of business, setoff or charge back or (C) relating to payments of interest, fees or late charges;
(xii)    Receivables owing from an account debtor that is (A) the United States or an agency, department or instrumentality of the United States or any state thereof unless the applicable U.S. Borrower or the applicable Canadian Loan Party shall have satisfied the requirements of the Assignment of Claims Act of 1940, and any similar state legislation and the Administrative Agent is satisfied as to the absence of setoffs, counterclaims and other defenses on the part of such account debtor or (B) the government of Canada or any department, agency,


 
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public corporation, Crown corporation or other instrumentality thereof unless the applicable U.S. Borrower or the applicable Canadian Loan Party shall have satisfied the assignment requirements of, and is in compliance with, the Financial Administration Act (Canada) and any similar provincial legislation and the Administrative Agent is satisfied as to the absence of setoffs, counterclaims and other defenses on the part of such account debtor, or (C) a Governmental Authority not listed in clauses (A) and (B) hereof unless it is a Receivable that is otherwise not ineligible hereunder and the applicable U.S. Borrower or the applicable Canadian Loan Party has complied with all applicable Laws relating to taking security in such Receivables;
(xiii)    Receivables owing from an account debtor whose Receivables are sold or identified for sale by the applicable Loan Party pursuant to a Factoring Arrangement (it being understood and agreed that all Receivables from any such account debtor shall be excluded from the Eligible Collateral, regardless of whether or not a particular Receivable is subject to such Factoring Arrangement);
(xiv)    Receivables likely offset by rebate accrual to the extent such rebate is payable in cash; provided that the exclusion set forth in this clause (xiv) shall be reduced by the amount attributable to the Receivables excluded from Eligible Receivables by virtue of clause (vi) of this definition;
(xv)    Receivables with respect to which the representations and warranties set forth in Article III of the Security Agreements applicable to Receivables are not correct in any material respect;
(xvi)    Receivables that are (A) not “trade” Receivables (such as employee purchases), (B) otherwise classified as “miscellaneous accounts receivable” by the applicable Loan Party or (C) included by the applicable Loan Party in the allowance for doubtful accounts;
(xvii)    Receivables in respect of which the Security Agreements, after giving effect to the related filings of financing statements or recordations that have then been made, if any, do not or have ceased to create a valid and perfected first priority Lien, security interest or hypothec in favor of the Collateral Agent, on behalf of the Secured Parties, securing the Finance Obligations;
(xviii)    Receivables with respect to which a payment has been received but not applied to such Receivables
(xix)    Receivables with respect to which the account debtor is a Sanctioned Person; and
(xx)    the sale of goods or the rendition of services giving rise to such Receivables is supported by a performance, bid or surety bond unless the issuer of such bond shall have waived in writing any rights or interest in and to all Collateral, in form and substance reasonably satisfactory to Administrative Agent.
Except for purposes of determining compliance with Section 4.02(d), no new classes of ineligible Receivables may be established and no ineligibility criteria set forth above may be changed except upon not less than five Business Days’ notice to the Parent Borrower (unless an Event of Default exists, in which event no notice shall be required). The Administrative Agent will be available during such period to discuss any such proposed new class of ineligible Receivables or such proposed change to the


 
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ineligibility criteria with the Borrowers and, without limiting the right of the Administrative Agent to establish such new class of ineligible Receivables or change such ineligibility criteria in the Administrative Agent’s Credit Judgment, the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such ineligibility no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent.
Environmental Laws” means any and all United States federal, state, Canadian federal, provincial, local/municipal, and foreign statutes, Laws, regulations, ordinances, rules, judgments, authorizations approvals, consents, registrations, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to pollution and the protection of the environment or the release of any hazardous materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of remediation, fines, penalties or indemnities), of any Group Company directly or indirectly resulting from or based on (i) violation of any Environmental Law, (ii) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Material, (iii) exposure to any Hazardous Material, (iv) the release or threatened release of any Hazardous Material into the environment or (v) any contract, agreement or other binding consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
Equity Equivalents” means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible or exchangeable into Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.
Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
Equivalent Amount” means, at any time with respect to any other currency, the amount of Dollars, Canadian Dollars or Pounds Sterling, as applicable, into which an amount of such other currency may be converted, in either case as determined by the Administrative Agent at such time on the basis of the Spot Rate in accordance with Section 1.07.
ERISA” means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with a Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).


 
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ERISA Event” means: (i) a Reportable Event with respect to a Pension Plan; (ii) a withdrawal by a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (iv) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (vi) with respect to Plan years beginning after December 31, 2007, the occurrence of a Pension Plan entering into “at-risk” status (as defined in Section 303 of ERISA) or a Multiemployer Plan entering into “endangered” or “critical” status (as defined in Section 305 of ERISA); or (vii) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate.
Eurocurrency Loan” means a Loan or Borrowing that bears interest at a rate determined by reference to the Adjusted LIBO Rate.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Eurocurrency Reserve Percentage” means for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Revolving Credit Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to “Eurocurrency liabilities”). The Adjusted LIBO Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Percentage.
Event of Default” has the meaning specified in Section 8.01.
Excess Availability” means, at any time, the sum of (i) the Canadian Excess Availability, (ii) the U.S. Excess Availability and (iii) the U.K. Excess Availability.
Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Excluded Subsidiaries” means, collectively, (u) any Subsidiary with total assets less than $100,000, so long as such Subsidiary is not liable in respect of any Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries, (v) Domestic Subsidiaries (other than U.S. Loan Parties), (w) Unrestricted Subsidiaries, (x) Foreign Subsidiaries that are not Canadian Subsidiaries or U.K. Subsidiaries, (y) Immaterial Subsidiaries or (z) Sacopan.
Excluded Swap Obligation” shall mean, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Loan Party of, or the grant by such Loan Party of a Lien to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s


 
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failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder, at the time the guarantee of or grant of such Lien by such Loan Party becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one Swap Obligation, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such guarantee or Lien is or becomes illegal. Notwithstanding anything to the contrary in this Agreement and the other Loan Documents, Canadian Finance Obligations, U.K. Finance Obligations, Senior Credit Obligations, Swap Obligations, U.S. Finance Obligations and Finance Obligations shall not include Excluded Swap Obligations.
Excluded Taxes” means, with respect to the Administrative Agent, any Revolving Credit Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document, (i) Taxes imposed on or measured by its overall net income (however denominated), franchise Taxes (imposed on it in lieu of net income Taxes) and branch profits Taxes, in each case imposed by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Revolving Credit Lender, in which its Lending Office is located, or that are imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax, (ii) in the case of a Revolving Credit Lender (other than an assignee pursuant to a request by the Borrower Representative under Section 10.13 and other than an assignee Revolving Credit Lender pursuant to a CAM Exchange with respect to the portion attributable to the CAM Exchange under Section 8.04), any United States or Canadian withholding Tax that is required to be imposed on amounts payable to such Revolving Credit Lender pursuant to Laws in force at the time such Revolving Credit Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such Revolving Credit Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Loan Parties with respect to such withholding tax pursuant to Section 3.01(a), (iii) Taxes attributable to such recipient’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), and (iv) any United States withholding Tax imposed under FATCA.
Exhaustion of Available Canadian Pool” means that all amounts collected by the Administrative Agent or, in the good faith determination of the Administrative Agent, available for collection by the Administrative Agent from or on account of the Canadian Loan Parties or in respect of the Canadian Collateral upon the exercise of remedies provided for in Section 8.02 have been applied in full to the payment or Cash Collateralization of Canadian Finance Obligations in accordance with Section 8.03(ii).
Exhaustion of Available U.K. Pool” means that all amounts collected by the Administrative Agent or, in the good faith determination of the Administrative Agent, available for collection by the Administrative Agent from or on account of the U.K. Loan Parties or in respect of the U.K. Collateral upon the exercise of the remedies provided for in Section 8.02 have been applied in full to the payment or Cash Collateralization of U.K. Finance Obligations in accordance with Section 8.03(iii).
Exhaustion of Available U.S. Pool” means that all amounts collected by the Administrative Agent or, in the good faith determination of the Administrative Agent, available for collection by the Administrative Agent from or on account of the U.S. Loan Parties or in respect of the U.S. Collateral upon the exercise of the remedies provided for in Section 8.02 have been applied in full to the payment or Cash Collateralization of U.S. Finance Obligations in accordance with Section 8.03(i).
Existing Credit Agreement” has the meaning specified in the Preliminary Statements.


 
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Existing Indebtedness” has the meaning specified in Section 7.02(iv).
Existing Lenders” has the meaning specified in the Preliminary Statements.
Existing Letters of Credit” means the letters of credit issued by an L/C Issuer before the Restatement Effective Date and described on Schedule 2.03 hereto, and “Existing Letter of Credit” means any one of them.
Facilities Increase Amendment” has the meaning specified in Section 2.13(e).
Facility” means the U.S. Revolving Credit Facility, the Canadian Revolving Credit Facility or the U.K. Revolving Credit Facility, as the context may require.
Factoring Arrangement” means with respect to Receivables owing from (x) either Home Depot, Inc. or Lowe’s Companies, Inc. or any of their respective subsidiaries or (y) any other Person identified by the Parent Borrower and reasonably acceptable to the Administrative Agent, a sale of such Receivables by a Loan Party to a third Person who is not an Affiliate of the Loan Parties on a non-recourse basis (except for customary representations, warranties, covenants and indemnities made in connection with such arrangements).
Failed Loan” has the meaning specified in Section 2.11(b)(ii).
FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreements, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).
Fee Letter” means the Second Amended and Restated Fee Letter, dated on or about the Restatement Effective Date, between the Parent Borrower and the Administrative Agent.
Field Examination” means a field examination prepared by, at the Administrative Agent’s sole reasonable discretion, the Administrative Agent or a third-party firm (reasonably acceptable to the Borrower Representative) engaged by the Administrative Agent reviewing the quality and performance of the Borrowers’ and their respective Subsidiaries’ Receivables and Inventory, the reliability and integrity of the accounting and cost systems of the Parent Borrower and its Subsidiaries, the accounting policies of the Parent Borrower and its Subsidiaries and any other collateral or financial due diligence as may be reasonably required by the Administrative Agent.


 
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Finance Document” means (i) each Loan Document, (ii) each Secured Hedge Agreement and (iii) each Secured Cash Management Agreement, and “Finance Documents” means all of them, collectively.
Finance Obligations” means, at any date, (i) all Senior Credit Obligations, (ii) all Swap Obligations permitted hereunder then owing under any Secured Hedge Agreement to any Hedge Bank and (iii) all Cash Management Obligations then owing under any Secured Cash Management Agreement to a Cash Management Bank.
Financial Support Direction” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.
Fixed Charge Coverage Ratio” means at any date the ratio of (i) Consolidated EBITDA for the most recently completed Measurement Period less the aggregate amount of Consolidated Capital Expenditures for such period to (ii) Consolidated Fixed Charges for the most recently completed Measurement Period.
Flood Laws” means the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor provisions.
Foreign Cash Equivalents” means any Investment in certificates of deposit or bankers’ acceptances of any bank organized under the laws of any country that is a member of the European Economic Community or the United Kingdom, whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof; provided in each case that such Investment matures within one year from the date of acquisition thereof by a Foreign Subsidiary of any Borrower.
Foreign Lender” means, with respect to any Borrower, any Appropriate Lender that is organized under the Laws of, or otherwise treated as a resident for tax purposes of, a jurisdiction other than that in which such Borrower is a resident for tax purposes (including such Appropriate Lender when acting in the capacity of an L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
Foreign Plan” has the meaning specified in Section 5.12(e).
Foreign Subsidiary” means with respect to any Person any Subsidiary of such Person that is not a Domestic Subsidiary of such Person.
FSCO” means the Financial Services Commission of Ontario.
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
Funded Indebtedness” means, with respect to any Person and its Subsidiaries on a consolidated basis at any date and without duplication, (i) all Indebtedness of such Person of the types referred to in clauses (i) and (ii) (determined at its full par principal amount, without discount for original issue discount and without netting of financing fees or any other deferred costs) and clauses (v), (vii)(A) (but in respect of letters of credit and bankers’ acceptances only to the extent drawn and not yet reimbursed), (vii)(B), (viii) and (x) of the definition of “Indebtedness” in this Section 1.01, (ii) all Guarantees of such


 
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Person and its Subsidiaries with respect to Indebtedness of others of the type referred to in clause (i) above, (iii) all Indebtedness of the type referred to in clause (i) above of any other Person (including any Partnership in which such Person or any of its Subsidiaries is a general partner and any unincorporated joint venture in which such Person or any of its Subsidiaries is a joint venturer) to the extent such Person would be liable therefor under any applicable law or any agreement or instrument by virtue of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person shall not be liable therefor and (iv) all Preferred Stock of any Subsidiary of the Borrowers held by any Person other than the Borrowers or a Wholly-Owned Subsidiary of the Borrowers (valued at the higher of its voluntary or involuntary liquidation value).
GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, applied consistently and subject to Section 1.03(b).
Genpact Contract” means that certain Master Services Agreement, dated as of March 27, 2009, among the Lead U.S. Borrower and Genpact International, Inc.
Governmental Authority” means the government of the United States, United Kingdom, Canada or any other nation, or of any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Group Company” means any of the Primary Loan Parties or their respective Subsidiaries (regardless of whether or not consolidated with the Borrowers for purposes of GAAP), and “Group Companies” means all of them, collectively.
Guarantee” means, with respect to any Person, without duplication, any obligation (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing, intended to guarantee, or having the economic effect of guaranteeing, any Indebtedness of any other Person in any manner, whether direct or indirect, and including, without limitation, any obligation, whether or not contingent, (i) to purchase any such Indebtedness or any property constituting security therefor, (ii) to advance or provide funds or other support for the payment or purchase of such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person, (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness or (iv) to otherwise assure or hold harmless the owner of such Indebtedness against loss in respect thereof. The amount of any Guarantee hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guarantee is made (or, if the amount of such primary obligation is not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder)).
Guaranties” means the U.S. Guaranty, the Canadian Guarantee and the U.K. Guaranty.


 
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Guarantors” means, collectively, the Primary Loan Parties, the other Subsidiaries of the Parent Borrower listed on Schedule 6.12 and each other Subsidiary of the Parent Borrower that shall be required to execute and deliver an Accession Agreement or other guaranty or guaranty supplement pursuant to Section 6.12.
Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law due to their dangerous or deleterious properties or characteristics.
Hedge Bank” means any Person that, at the time it enters into a Swap Contract permitted under Article VI or VII, is a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, in its capacity as a party to such Swap Contract.
Hedging Obligations” means, with respect to any Person, the obligations of such Person under currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements and other agreements or arrangements, in each case designed to protect such Person against fluctuations in currency exchange, interest rates or commodity prices.
Honor Date” has the meaning specified in Section 2.03(c).
Hypothecary Representative” has the meaning specified in Section 9.01(d).
IFRS” has the meaning specified in Section 1.03(b).
Immaterial Subsidiary” means any Domestic Subsidiary, Canadian Subsidiary or U.K. Subsidiary of the Parent Borrower that is listed on Schedule 1.01A and each other Domestic Subsidiary, Canadian Subsidiary or U.K. Subsidiary of the Parent Borrower designated in writing by the Borrower Representative to the Administrative Agent after the date hereof as an Immaterial Subsidiary; provided that such Subsidiary so designated after the date hereof shall only be considered an Immaterial Subsidiary to the extent that the representations with respect thereto set forth in Section 5.22 are true and correct with respect thereto and the Administrative Agent shall have received such evidence thereof as it may reasonably require; provided, further, that, no Loan Party shall be an Immaterial Subsidiary.
Impacted Lender” means at any date (i) a Revolving Credit Lender which is then a Defaulting Lender or (ii) a Revolving Credit Lender (A) which the Administrative Agent or any applicable L/C Issuer, as applicable, in good faith believes has defaulted in fulfilling its obligations under one or more other syndicated credit facilities or (B) is Controlled by a Person that has been deemed insolvent or become subject to a bankruptcy, insolvency, receivership, conservatorship or other similar proceeding.
In-Transit Adjustment Reserves” means reserves, determined by the Administrative Agent in its Credit Judgment as of the end of each calendar quarter, with respect to the Receivables arising from month-end shipments during such quarter with free-on-board delivery terms where the orders have not been received by a customer as of the end of the relevant month (unless such reserves have otherwise been reflected in another category of Eligible Collateral).
Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:


 
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(i)    all obligations of such Person for borrowed money;
(ii)    all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii)    all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);
(iv)    all obligations, other than intercompany items, of such Person to pay the deferred purchase price of property or services that in accordance with GAAP would be included as liabilities on the balance sheet of such Person (other than trade accounts payable and accrued expenses arising in the ordinary course of business and (x) due within 90 days of the incurrence thereof or (y) actively being contested in good faith through appropriate proceedings and appropriate reserves have been established in accordance with GAAP);
(v)    the Attributable Indebtedness of such Person in respect of (A) Capital Lease Obligations and Sale/Leaseback Transactions to the extent such Indebtedness constitutes a liability under GAAP and (B) Synthetic Lease Obligations;
(vi)    all obligations of such Person to purchase securities or other property which arise out of or in connection with the sale of the same or substantially similar securities or property;
(vii)    without duplication, all (A) non-contingent obligations (and, for purposes of Section 7.02 and Section 8.01(e), all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, bankers’ acceptance, bank guaranty or similar instrument and (B) all non-contingent obligations (and, for purposes of Section 7.02 and Section 8.01(e)(i), all contingent obligations) of such Person to reimburse any Person in respect of amounts paid or payable under a performance, payment, stay, customs, appeal or surety bond, performance and completion guaranty or similar instrument;
(viii)    all obligations of others secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) a Lien on, or payable out of the proceeds of production from, any property or asset of such Person, whether or not such obligation is assumed by such Person; provided that the amount of any Indebtedness of others that constitutes Indebtedness of such Person solely by reason of this clause (viii) shall not for purposes of this Agreement exceed the greater of the book value or the fair market value of the properties or assets subject to such Lien;
(ix)    all Guarantees of such Person of Indebtedness of the types described in clauses (i) – (viii) above and (x) below; and
(x)    all Debt Equivalents of such Person;
provided that (i) Indebtedness shall not include (A) deferred compensation arrangements, (B) earn-out obligations until matured or earned or (C) non-compete or consulting obligations incurred in connection with Permitted Acquisitions and (ii) the amount of any Limited Recourse Indebtedness of any Person shall be equal to the lesser of (A) the aggregate principal amount of such Limited Recourse Indebtedness


 
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for which such Person provides credit support of any kind (including any undertaking agreement or instrument that would constitute Indebtedness), is directly or indirectly liable as a guarantor or otherwise or is the lender and (B) the fair market value of any assets securing such Indebtedness or to which such Indebtedness is otherwise recourse.
Indemnified Taxes” means Taxes other than Excluded Taxes.
Indemnitees” has the meaning specified in Section 10.04(b).
Ineligible Assignees” has the meaning specified in Section 10.06(b)(vi).
Information” has the meaning specified in Section 10.07.
Insurance Proceeds” means all insurance proceeds (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), damages, awards, claims and rights of action with respect to any Casualty.
Intercompany Subordination Agreement” means, with respect to any Indebtedness for borrowed money owing by any Loan Party to any Subsidiary of the Parent Borrower that is not a Loan Party, an intercompany subordinated note, in form and substance reasonably acceptable to the Administrative Agent, which has been executed and delivered by such Loan Party and such Subsidiary.
Interest Payment Date” means, (i) as to any Eurocurrency Loan or any BA Rate Loan, the first day of the calendar month immediately following each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Revolving Credit Loan was made; provided, however, that if any Interest Period for a Eurocurrency Loan or BA Rate Loan exceeds three months, the respective dates that fall on the first day of the calendar month immediately following every third calendar month after the beginning of such Interest Period shall also be an Interest Payment Date; and (ii) as to any Base Rate Loan or Canadian Base Rate Loan, the first day of the calendar month immediately following each calendar month in respect of which the interest on such Base Rate Loan or Canadian Base Rate Loan, as the case may be, is paid on such Interest Payment Date, and the Maturity Date of the Facility under which such Revolving Credit Loan was made.
Interest Period” means, as to each Eurocurrency Loan and each BA Rate Loan, the period commencing on the date such Eurocurrency Loan or such BA Rate Loan, as the case may be, is disbursed or converted to or continued as a Eurocurrency Loan, or a BA Rate Loan, respectively, and ending on the date one week (other than with respect to a BA Rate Loan), or one, two, three or six months or, if consented to by all Appropriate Lenders under the applicable Facility and with respect to a specific Borrowing, nine months or twelve months thereafter, as selected by the Borrower Representative (on behalf of the applicable Borrower) in its Committed Loan Notice; provided that:
(i)    any Interest Period which would otherwise end on a day which is not a Business Day shall, subject to clause (iv) below, be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii)    any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month;


 
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(iii)    no Interest Period may be selected at any time when a Default or an Event of Default is then in existence;
(iv)    no Interest Period shall extend beyond the Maturity Date of the Facility under which such Revolving Credit Loan was made.
Inventory” means all goods intended for sale or lease by a Loan Party (and including, without limitation, all “Inventory” as defined in the UCC or the PPSA, as applicable), or for display or demonstration, all work in process, all raw materials and other materials and supplies of every nature and description used or which might be used in connection with the manufacture, printing, packing, shipping, advertising, selling, leasing or furnishing such goods or otherwise used or consumed in such Loan Party’s business, along with all prints and labels on which any trademark owned or licensed by a Loan Party has appeared or appears, package and other designs, and the rights in any of the foregoing which arise under applicable Law.
Investment” in any Person means without duplication, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt interest in, another Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit or all or substantially all of the business of, such Person The outstanding amount of any Investment shall be deemed to equal the difference of (i) the aggregate initial amount of such Investment less (ii) all returns of principal thereof or capital with respect thereto and all liabilities expressly assumed by another Person (and with respect to which the Parent Borrower and its Subsidiaries, as applicable, shall have received a novation) in connection with the sale of such Investment.
Investment Grade Eligible Receivables” means Eligible Receivables owed by an entity having a long-term credit rating of Baa3 or higher by Moody’s (or, if Moody’s does not assign a long-term credit rating for such entity, having a long-term credit rating of investment grade or higher by an NRSRO other than S&P) and BBB- or higher by S&P (or, if S&P does not assign a long-term credit rating for such entity, having a long-term credit rating of investment grade or higher by an additional NRSRO other than Moody’s).
IP Rights” has the meaning specified in Section 5.17.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application and any other document, agreement and instrument entered into by an L/C Issuer and the applicable Borrower (or any applicable Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
“ITA” means the United Kingdom Income Tax Act 2007.
Joint Venture” means (i) any Person which would constitute an “equity method investee” of the Parent Borrower or any of its Subsidiaries, (ii) any other Person designated by the Borrower Representative in writing to the Administrative Agent (which designation shall be irrevocable) as a “Joint Venture” for purposes of this Agreement and at least 50% but less than 100% of whose Equity Interests


 
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are directly owned by the Parent Borrower or any of its Subsidiaries and (iii) any Person in whom the Parent Borrower or any of its Subsidiaries beneficially owns any Equity Interest that is not a Subsidiary.
Judgment Currency” has the meaning specified in Section 10.19.
Judgment Currency Conversion Date” has the meaning specified in Section 10.19.
Laws” means, collectively, all international, foreign, United States federal, state, Canadian federal, provincial and local/municipal statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directives, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of Law.
L/C Advance” means a U.S. L/C Advance, a Canadian L/C Advance and/or a U.K. L/C Advance, as the context may require.
L/C Borrowing” means a U.S. L/C Borrowing, a Canadian L/C Borrowing and/or a U.K. L/C Borrowing, as the context may require.
L/C Credit Extension” means a U.S. L/C Credit Extension, a Canadian L/C Credit Extension and/or a U.K. L/C Credit Extension, as the context may require.
L/C Issuer” means a U.S. L/C Issuer, a Canadian L/C Issuer and/or a U.K. L/C Issuer, as the context may require.
L/C Obligations” means the U.S. L/C Obligations, the Canadian L/C Obligations and/or the U.K. L/C Obligations, as the context may require.
Lead U.K. Borrower” means Premdor Crosby Limited, a limited company incorporated in England and Wales with company number 03227274.
Lead U.S. Borrower” means Masonite Corporation, a Delaware corporation.
Lender Default” means, with respect to any Revolving Credit Lender as reasonably determined by the Administrative Agent, that such Revolving Credit Lender (i) has failed to fund any portion of the Revolving Credit Loans or participations in L/C Advances required to be funded by it hereunder within 1 Business Day of the date when due, (ii) has notified the Borrower Representative, the Administrative Agent or any Revolving Credit Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it has committed to extend credit, (iii) has failed, within three Business Days (or prior to the applicable date on which it is required hereunder to fund any portion of the Revolving Credit Loans or participations in L/C Advances required to be funded by it hereunder (each, a “Funding Date”), if earlier) after written request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans or participations in L/C Advances; provided that a Lender Default with respect to such Revolving Credit Lender shall cease to exist under this clause (iii) upon receipt of such confirmation by the Administrative Agent, (iv) has otherwise failed to pay over to the Administrative Agent or any other Revolving Credit Lender any other amount required to be paid by it


 
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hereunder within three Business Days of the date when due or prior to the Funding Date, if earlier, unless the subject of a good faith dispute, (v) (A) has become or is insolvent or has a parent company that has become or is insolvent or (B) has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, liquidator, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, liquidator, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or (vi) has become the subject of a Bail-in-Action; provided that a Lender Default shall not exist with respect to a Revolving Credit Lender solely by virtue of the ownership or acquisition of an Equity Interest in such Revolving Credit Lender or a parent company thereof by a Governmental Authority or an instrumentality thereof, unless such ownership or acquisition results in or provides such Revolving Credit Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Revolving Credit Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender.
Lending Office” means (i) with respect to any Revolving Credit Lender and for each Type of Revolving Credit Loan, the “Lending Office” of such Revolving Credit Lender (or of an Affiliate of such Revolving Credit Lender) designated for such Type of Loan in such Revolving Credit Lender’s Administrative Questionnaire or in any applicable Assignment and Assumption pursuant to which such Revolving Credit Lender became a Revolving Credit Lender hereunder or such other office of such Revolving Credit Lender (or of an Affiliate of such Revolving Credit Lender) as such Revolving Credit Lender may from time to time specify to the Administrative Agent and the Borrower Representative as the office by which its Revolving Credit Loans of such Type are to be made and maintained and (ii) with respect to any L/C Issuer and for each Letter of Credit, the “Lending Office” of such L/C Issuer (or of an Affiliate of such L/C Issuer) designated on the signature pages hereto or such other office of such L/C Issuer (or of an Affiliate of such L/C Issuer) as such L/C Issuer may from time to time specify to the Administrative Agent and the Borrower Representative as the office by which its Letters of Credit are to be issued and maintained.
Letter of Credit” means a U.S. Letter of Credit, a Canadian Letter of Credit and/or a U.K. Letter of Credit, as the context may require.
Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by an L/C Issuer.
Letter of Credit Expiration Date” means the day that is thirty days prior to the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
Letter of Credit Fee” has the meaning specified in Section 2.03(i).
Letter of Credit Indemnified Cost” has the meaning specified in Section 2.03(n).
Letter of Credit Sublimit” means the U.S. Letter of Credit Sublimit, the Canadian Letter of Credit Sublimit and/or the U.K. Letter of Credit Sublimit, as the context may require.


 
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LIBO Rate” means for any Interest Period with respect to a Eurocurrency Loan (or otherwise for purposes of calculating the Adjusted LIBO Rate, as applicable), the rate per annum as published by ICE Benchmark Administration Limited (or in any case, any successor page or other commercially available source as the Administrative Agent may designate from time to time) as of 11:00 a.m., London time, two (2) Business Days prior to the commencement of the requested interest period (or in the case of U.K. Revolving Credit Loan denominated in Pounds Sterling, the Business Day of the commencement), for a term, and in an amount, and in the currency, comparable to the interest period and the amount and currency of the Eurocurrency Loan requested (whether as an initial Eurocurrency Loan or as a continuation of a Eurocurrency Loan or as a conversion of a Base Rate Loan to a Eurocurrency Loan) by Borrowers in accordance with this Agreement (and, if any such published rate is below zero, then the rate determined pursuant to this clause shall be deemed to be zero). Each determination of the LIBO Rate shall be made by Administrative Agent and shall be conclusive in the absence of manifest error.
License” means any license or agreement under which a Loan Party is authorized to use IP Rights in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of property or any other conduct of its business.
Licensor” means any Person from whom a Loan Party obtains the right to use any IP Rights.
Lien” means any security interest, mortgage, pledge, hypothec, hypothecation, assignment, deposit arrangement, encumbrance, deemed trust, lien (statutory or otherwise), charge, preference, garnishment right, priority or other security interest, or preferential arrangement in the nature of a security interest or arising by virtue of a right of subrogation, contribution, reimbursement of similar right, of any kind or nature whatsoever, choate or inchoate (including any conditional sale or other title retention agreement, any easement, servitude, right of way or other encumbrance on title to Real Property, and any financing lease having substantially the same economic effect as any of the foregoing, but excluding the interest of a lessor under an operating lease).
Lien Waiver” means an agreement, in form and substance reasonably satisfactory to the Administrative Agent, by which (i) for any Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit the Administrative Agent to enter upon the premises and remove the Collateral or to use the premises for an agreed upon period of time to store or dispose of the Collateral, (ii) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any documents in its possession relating to the Collateral as agent for the Administrative Agent, and agrees to deliver the Collateral to the Administrative Agent upon request and (iii) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges the Administrative Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to the Administrative Agent upon request.
Limited Recourse Indebtedness” means with respect to any Person, Indebtedness to the extent: (i) such Person (A) provides no credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (B) is not directly or indirectly liable as a guarantor or otherwise or (C) does not constitute the lender; and (ii) no default with respect thereto would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Revolving Credit Loans or the Notes) of such Person to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity.


 
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Loan Documents” means, collectively, this Agreement, the Notes, the Guaranties, the Collateral Documents, each Perfection Certificate, each Accession Agreement, the Fee Letter, each Intercompany Subordination Agreement and each Issuer Document.
Loan Party” means, collectively, each Borrower and each Guarantor; provided, that no Unrestricted Subsidiary shall constitute a Loan Party.
Loan Value” means, at any time, with respect to the Eligible Collateral, the sum of the following amounts and, with respect to a particular category of Eligible Collateral, the following amount for such category of Eligible Collateral:
(i)    the lesser of (A) 70% of the net book value of the Eligible Inventory and (B) 85% of the NOLV Percentage of the value of the Eligible Inventory; provided, that, the Loan Value of Eligible Inventory consisting of Eligible In-Transit Inventory shall not exceed $15,000,000 in the aggregate;
(ii)    90% of the Investment Grade Eligible Receivables; and
(iii)    85% of the Non-Investment Grade Eligible Receivables;
provided, that, the percentages in clauses (i)(B) and (iii) shall be increased by 5% during each Seasonal Overadvance Period.
Loans” means Revolving Credit Loans.
MACT Transaction” means the steps taken, and the expenditures made by, the Loan Parties prior to the Restatement Effective Date to comply with the regulations enacted by the United States Environmental Protection Agency relating to Maximum Achievable Control Technology; provided, that, such expenditures did not exceed $49,500,000 in the aggregate.
Margin Stock” means “margin stock” as such term is defined in Regulation U.
Material Adverse Effect” means (i) a material adverse effect on the business, operations, assets, liabilities (actual or contingent) or financial condition of the Parent Borrower and its Restricted Subsidiaries (taken as a whole), (ii) a material adverse effect on ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document, (iii) a material impairment of the rights and remedies of the Collateral Agent, the Administrative Agent or the Revolving Credit Lenders under any Loan Document that is materially adverse to the Revolving Credit Lenders or (iv) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party; provided that, in no event shall the following constitute a Material Adverse Effect: (A) any occurrence, condition, change, event or effect resulting from or relating to changes in general economic or financial market conditions, including fluctuations in currency exchange rates; (B) any occurrence, condition, change, event or effect that affects the building products industry generally (including changes in commodity prices, general market prices and regulatory changes affecting the building products industry generally); (C) the outbreak or escalation of hostilities involving the United States, Canada or the United Kingdom, the declaration by the United States, Canada or the United Kingdom of a national emergency or war or the occurrence of any natural disasters and acts of terrorism (but not any such event resulting in any damage or destruction to or any Loan Party’s physical properties to the extent such change or effect would otherwise constitute a Material Adverse Effect); (D) any occurrence, condition, change, event or effect resulting from or relating to the public


 
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disclosure of the transactions contemplated by the Revolving Credit Facility; (E) changes in GAAP, or in the interpretation thereof, as imposed upon the Parent Borrower, its Subsidiaries or their respective businesses; or (F) any change in law or regulation, or in the interpretation thereof; except with respect to each of clause (A), (B), (C) or (F), in the event, and only to the extent, that such occurrence, condition, change, event or effect has had a disproportionate effect on the Parent Borrower and its Subsidiaries, taken as a whole, as compared to other persons engaged in the building products industry in the same geographic regions and segments as the Parent Borrower and its Subsidiaries.
Material Debt” has the meaning specified in Section 8.01(e).
Maturity Date” means (x) if the Springing Maturity Condition does not apply, the fifth anniversary of the Restatement Effective Date and (y) if the Springing Maturity Condition does apply, the Springing Maturity Date; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
Maximum Rate” has the meaning specified in Section 10.09.
Measurement Period” means, at any date of determination, the four consecutive fiscal quarters of the Parent Borrower ending on, or most recently preceding, such day.
Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its successors or, absent any such successor, such nationally recognized statistical rating organization as the Borrower Representative and the Administrative Agent may select.
Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which a Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions, but does not include any Canadian Union Plans.
Net Cash Proceeds” means, with respect to the Disposition of any asset by any Loan Party, any Casualty or any Condemnation, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition, Casualty or Condemnation (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note, receivable or otherwise, but only as and when so received and, with respect to any Casualty or Condemnation, any Insurance Proceeds or Condemnation Awards actually received by or paid to or for the account of such Group Company) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured (or, in the case of an asset included in the Collateral, secured on a first priority basis) by the asset subject to such Disposition, Casualty or Condemnation and that is repaid in connection with such Disposition, Casualty or Condemnation (other than Indebtedness under the Loan Documents), (B) the out-of-pocket expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by such Loan Party in connection with such Disposition, Casualty or Condemnation, (C) taxes paid or reasonably estimated to be payable by such Loan Party or any of the direct or indirect members thereof and attributable to such Disposition, Casualty or Condemnation (including, in respect of any proceeds received in connection with a Disposition, Casualty or Condemnation of any asset of any Foreign Subsidiary, deductions in respect of withholding taxes that are or would be payable in cash if such funds were repatriated to the United States or Canada); provided that, if the amount of any estimated taxes pursuant to this subclause (C) exceeds the amount of taxes actually required to be paid in cash, the aggregate amount of such excess shall constitute “Net Cash Proceeds”, and (D) any reserve for adjustment in respect of (x) the sale price of such asset or


 
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assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by such Loan Party after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction and it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents received (x) upon the Disposition of any non-cash consideration received by such Loan Party in any such Disposition and (y) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or, if such liabilities have not been satisfied in cash and such reserve not reversed within 365 days after such Disposition, Casualty or Condemnation, the amount of such reserve.
Net Total Available Canadian Borrowing Base” means the Total Available Canadian Borrowing Base minus the Utilized Total Available Canadian Borrowing Base.
Net Total Available U.K. Borrowing Base” means the Total Available U.K. Borrowing Base minus the Utilized Total Available U.K. Borrowing Base.
Net Total Available U.S. Borrowing Base” means the Total Available U.S. Borrowing Base minus the Utilized Total Available U.S. Borrowing Base.
NOLV Percentage” means the net orderly liquidation value of Inventory, expressed as a percentage, expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all anticipated and customary out-of-pocket liquidation expenses, as determined from the most recent appraisal of the Loan Parties’ Inventory performed by an appraiser reasonably acceptable to the Parent Borrower and the Administrative Agent and on terms reasonably satisfactory to the Administrative Agent.
Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).
Non-Investment Grade Eligible Receivables” means Eligible Receivables that are not Investment Grade Eligible Receivables.
Note” means a Revolving Credit Note.
Note Documents” means, collectively, the Note Indentures and any agreements, documents or instrument executed in connection with the Note Indentures.
Note Indentures” means, collectively, the 2023 Note Indenture and the 2026 Note Indenture.
NPL” means the National Priorities List under CERCLA.
NRSRO” means a nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Exchange Act of 1934.
Obligation Currency” has the meaning specified in Section 10.19.
OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
Operating Lease” means, as applied to any Person, a lease (including leases which may be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.


 
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Organization Documents” means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction); (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement; (iii) with respect to any general or limited partnership, joint venture, unlimited liability company, trust or other form of business entity, the general or limited partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity; and (iv) with respect to any company incorporated in England and Wales, its certificate of incorporation (and any certificate on change of name) and its articles of association.
Original Effective Date” means April 9, 2015, which is the date of effectiveness of the Existing Credit Agreement.
OSC” means the Ontario Securities Commission.
Other Taxes” means all present or future stamp or documentary taxes or any other mortgage recording or similar taxes (including similar excise taxes), charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, except (i) any such taxes that are imposed with respect to an assignment as a result of a present or former connection between the assignee and the jurisdiction imposing such taxes (other than an assignment pursuant to a request by the Borrower Representative under Section 10.13) and (ii) Excluded Taxes.
Outstanding Amount” means (i) with respect to Revolving Credit Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans occurring on such date; (ii) with respect to any L/C Obligations on any date, the Dollar Equivalent of the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts; and (iii) with request to Swingline Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Swingline Loans on such date.
Overadvance” means a U.S. Overadvance, a Canadian Overadvance and/or a U.K. Overadvance, as the context may require.
Overadvance Loan” means a U.S. Overadvance Loan, a Canadian Overadvance Loan and/or a U.K. Overadvance Loan, as the context may require.
Overnight Rate” means, for any day, (i) with respect to any amount denominated in Dollars, the greater of (A) the Federal Funds Rate and (B) an overnight rate reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation, (ii) with respect to any amount denominated in Canadian Dollars, the Canadian Overnight Rate and (iii) with respect to any amount denominated in Pounds Sterling, the rate of interest per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for overnight deposits of Pounds Sterling, as displayed on the applicable Thomson Reuters screen page (currently page LIBOR01 or LIBOR02 (as applicable)) (or, in the event such rate does not appear on


 
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a page of the Thomson Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m., London time, on such day; provided, that, if any of the foregoing rates is less than zero, such rate shall be deemed to be zero.
Parent Borrower” means Masonite International Corporation, a British Columbia corporation, and its successors.
Participant” has the meaning specified in Section 10.06(d).
Patriot Act” has the meaning specified in Section 10.18.
Payment Conditions” means for any prepayment or other transaction contemplated by Section 7.14(iv), for any Investments contemplated by Sections 7.03(iii)(E), (vii)(D) and (xix), for any Restricted Payments contemplated by Sections 7.06(xiv) and (xv), or for any other applicable payment, transaction or event which requires that the Payment Conditions be satisfied, that (i) no Payment Conditions Default then exists and is continuing or would arise and be continuing immediately after giving effect to such transaction, unless such transaction would concurrently cure such Payment Conditions Default, and (ii) Average Excess Availability for the 30 days prior to, and the day of immediately after giving effect to, such transaction, will equal or exceed 17.5% of the Total Cap at such time.
Payment Conditions Default” means (i) any Event of Default specified in Section 8.01(a) or 8.01(f), (ii) any Event of Default specified in Section 8.01(b)(iv) arising from the failure to comply with Section 6.02(l) or (m), or (iii) any Event of Default specified in Section 8.01(d) arising from any misrepresentation contained in any Borrowing Base Certificate.
Payment Item” means each check, draft or other item of payment payable to a Loan Party, including those constituting proceeds of any Collateral.
PBGC” means the Pension Benefit Guarantee Corporation.
Pension Event” means (i) a complete or partial withdrawal or winding up by the Parent Borrower or any of its Subsidiaries from a Canadian Pension Plan or Canadian Union Plan during a plan year or a cessation of operations, termination of employees or other event which is treated as such a withdrawal under applicable Laws, (ii) a complete or partial withdrawal by the Parent Borrower or any of its Subsidiaries from a Canadian Pension Plan or Canadian Union Plan or notification that a Canadian Pension Plan or Canadian Union Plan is in reorganization, (iii) the filing of a notice to fully or partially wind-up or to terminate, the treatment of a Canadian Pension Plan amendment as a full or partial wind-up or termination, or the commencement of proceedings by any Governmental Authority or plan trustee or administrator to fully or partially wind-up or terminate a Canadian Pension Plan (iv) the occurrence of an event or condition which could reasonably be expected to constitute grounds for the wind-up or termination (in whole or in part) of, or the appointment of a replacement administrator or trustee to administer, any Canadian Pension Plan, or (v) the imposition of any material liability, other than for premiums or contributions due but not delinquent, upon the Parent Borrower or any of its Subsidiaries with respect to a Canadian Pension Plan or Canadian Union Plan.
Pension Plan” means (i) any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, Canadian Pension Plan or Canadian Union Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Parent Borrower or any ERISA Affiliate or to which a Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or


 
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in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years
Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004.
Perfection Certificate” means a certificate, substantially in the form of Exhibit F-4, completed and supplemented with the schedules and attachments contemplated thereby to the reasonable satisfaction of the Collateral Agent and duly executed by the chief executive officer, the chief legal officer, president, chief financial officer, secretary, treasurer, assistant treasurer or controller of the Parent Borrower.
Permitted Acquisition” has the meaning specified in Section 7.03(vii).
Permitted Joint Venture” means a Joint Venture, in the form of a corporation, limited liability company, business trust, joint venture, association, company or partnership, entered into by any Borrower or any of its Subsidiaries which (i) is engaged in a line of business related, ancillary or complementary to those engaged in by such Borrower and its Subsidiaries and (ii) is formed or organized in a manner that limits the exposure of such Borrower and its Subsidiaries for the liabilities thereof to (A) the Investments of such Borrower and its Subsidiaries therein permitted under Section 7.03(xxiii) and (B) any Indebtedness of any Permitted Joint Venture or any Guarantee by such Borrower or any of its Subsidiaries in respect of such Indebtedness, which Indebtedness or Guarantee are permitted at the time under Section 7.02.
Permitted Liens” means those Liens permitted by Section 7.01.
Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, exchange, replacement or extension of any Indebtedness of such Person; provided that (i) the principal amount (or accreted value, if applicable) of such modifying, refinancing, refunding, renewing, exchanging, replacing or extending Indebtedness (the “Refinancing Indebtedness”) does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended (the “Refinanced Indebtedness”) except by an amount equal to a reasonable premium or other reasonable amount paid, and fees, commissions, underwriting discounts and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, exchange, replacement or extension and by an amount equal to any existing and available commitments unutilized thereunder, (ii) the Refinancing Indebtedness has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Refinanced Indebtedness, (iii) if the Refinanced Indebtedness is subordinated in right of payment or in right to the proceeds of the realization of Collateral to the Senior Credit Obligations, the Refinancing Indebtedness is subordinated in right of payment or in right to the proceeds of the realization of Collateral to the Senior Credit Obligations on terms, taken as a whole, at least as favorable to the Revolving Credit Lenders as those contained in the documentation governing the Refinanced Indebtedness taken as a whole, (iv) the terms relating to principal amount, amortization, maturity and collateral (if any), and other material terms taken as a whole, of any Refinancing Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Revolving Credit Lenders than the terms of any agreement or instrument governing the Refinanced Indebtedness, as determined by the Board of Directors of the Parent Borrower, (v) the direct or any contingent obligor on the Refinanced Indebtedness is not changed (other than to eliminate any contingent obligor) as a result of or in


 
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connection with such modification, refinancing, refunding, renewal or extension and (vi) at the time of the incurrence of such Refinancing Indebtedness, no Event of Default shall have occurred and be continuing.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established, or required to be contributed to by, a Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate; provided, that, the term “Plan” shall not include any Canadian Pension Plan or Canadian Union Plan.
Platform” ‘has the meaning specified in Section 6.02.
Pounds Sterling” or “£” refers to the lawful currency of the United Kingdom and, in respect of all payments to be made under this Agreement in Pounds Sterling, means immediately available, freely transferrable funds in such currency.
PPSA” means the Personal Property Security Act (Ontario); provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the PPSA as in effect in a Canadian jurisdiction other than Ontario, or the Civil Code, “PPSA” means the Personal Property Security Act as in effect from time to time in such other jurisdiction or the Civil Code, as applicable, for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
Preferred Stock” means, as applied to the Equity Interests of a Person, Equity Interests of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Equity Interests of any other class of such Person.
Prepayment Notice” means a notice of prepayment of Loans pursuant to Section 2.04(c), which, if in writing, shall be substantially in the form of Exhibit A-2.
Primary Loan Party” means each of the Canadian Borrower, each U.K. Borrower and each U.S. Borrower.
Pro-Forma Basis” and “Pro-Forma Compliance” mean, for purposes of calculating compliance with the financial covenant set forth in Section 7.11 (even if no Covenant Trigger Event exists) in respect of a Specified Transaction, that such Specified Transaction and the following transactions consummated in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such covenant: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction”, (ii) any retirement of Indebtedness and (iii) any Indebtedness incurred or assumed by any Group Company in connection with such Specified Transaction, and if such Indebtedness has a floating or formula rate, it shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that the foregoing pro-forma adjustments may only be applied to the financial covenant set forth in Section 7.11 to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and may take into account cost savings for which the necessary steps have been implemented or are reasonably expected to be implemented within twelve months after the closing of the applicable


 
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Permitted Acquisition and which are consistent with Regulation S-X promulgated under the Securities Act of 1933.
Pro Forma Excess Availability” means, for any date of calculation, the Average Excess Availability for 30 days prior to, and including, such date, after giving effect to the transactions occurring on the date of calculation as if they occurred on the day 30 days prior thereto, based on assumptions and calculations reasonably acceptable to the Administrative Agent; it being agreed that, for purposes of calculating Pro Forma Excess Availability, unless the Administrative Agent shall otherwise agree in its reasonable discretion, no Inventory or Receivables to be acquired in an Investment otherwise permitted hereunder shall be included in the Eligible Collateral until the Administrative Agent shall have completed a preliminary field audit and inventory appraisal in scope and with results reasonably satisfactory to it and until the Collateral Agent shall have received duly executed Depositary Bank Agreements with respect to the non-exempt deposit accounts to be acquired in such Investment.
Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and including all regulations thereunder.
Protective Advance” has the meaning specified in Section 2.01(e).
Public Lender” has the meaning specified in Section 6.02.
Purchase Money Indebtedness” means Indebtedness of the Parent Borrower or any of its Subsidiaries incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Parent Borrower or such Subsidiary; provided that such Indebtedness is incurred within 180 days after such property is acquired or, in the case of improvements, constructed.
Qualified Cash” means cash or Cash Equivalents (other than cash or Cash Equivalents subject to a Depository Bank Agreement) owned by the Borrowers and their respective Subsidiaries (a) which are available for use by a Borrower, without condition or restriction (other than in favor of Collateral Agent the Borrowers and their respective Subsidiaries) and, (b) which are free and clear of any pledge, security interest, Lien, claim or other encumbrance (other than in favor of Collateral Agent and other than in favor of the securities intermediary or financial institution where such cash or Cash Equivalents are maintained for its customary fees and charges).
Real Property” means, with respect to any Person, all of the right, title and interest of such Person in and to land, improvements and fixtures.
Receivables” has the meaning specified in Section 1.03 of the Security Agreements.
Receivables Concentration Limit” means (A) with respect to (x) Home Depot, Inc. and its Subsidiaries or (y) Lowe’s Companies, Inc. and its Subsidiaries (i) if and for so long as the long term credit rating of Home Depot, Inc. or Lowe’s Companies, Inc., respectively, from S&P is at least BBB- and from Moody’s is at least Baa3, 50% of the net amount of all Eligible Receivables; provided that such percentage shall be increased to 60% for up to three months of each fiscal year at the Parent Borrower’s election, and (ii) if and for so long as the long term credit rating of Home Depot, Inc. or Lowe’s Companies, Inc., respectively, from S&P is less than BBB- and from Moody’s is less than Baa3, 40% of the net amount of all Eligible Receivables, and (B) with respect to any other Person identified in writing by a Borrower to the Administrative Agent, (i) if and for so long as the long term credit rating of such Person from S&P is at least BBB- and from Moody’s is at least Baa3, 35% of the net amount of all


 
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Eligible Receivables, and (ii) with respect to any Person not satisfying the requirements of the foregoing clauses (A) or (B), 20% of the net amount of all Eligible Receivables.
Register” has the meaning specified in Section 10.06(c).
Regulation” has the meaning specified in Section 5.26.
Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as amended, or any successor regulation.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
Rent and Charges Reserve” means (i) with respect to the U.S. Borrowing Base, the aggregate of (A) all past due rent and other amounts owing by a U.S. Loan Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible Inventory which are overdue by more than 30 days beyond their original due date or, to the applicable U.S. Borrower’s knowledge, could assert a Lien on any Eligible Inventory and (B) a reserve equal to three months rent that could be payable to any such Person, unless it has executed a Lien Waiver, (ii) with respect to the Canadian Borrowing Base, the Dollar Equivalent of the aggregate of (A) all past due (by more than 30 days) rent and other amounts owing by a Canadian Loan Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible Inventory or, to the applicable Canadian Loan Party’s knowledge, could assert a Lien on any Eligible Inventory and (B) a reserve equal to three months rent that could be payable to any such Person, unless, in either case, it has executed a Lien Waiver and (iii) with respect to the U.K. Borrowing Base, the Dollar Equivalent of the aggregate of (A) all past due (by more than 30 days) rent and other amounts owing by a U.K. Loan Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible Inventory or, to the applicable U.K. Loan Party’s knowledge, could assert a Lien on any Eligible Inventory and (B) a reserve equal to three months rent that could be payable to any such Person, unless, in either case, it has executed a Lien Waiver.
Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
Request for Credit Extension” means (i) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice and (ii) with respect to an L/C Credit Extension, a Letter of Credit Application.
Required Canadian Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of (i) the aggregate Canadian Revolving Commitments or (ii) if the Canadian Revolving Commitments have expired or been terminated or reduced to zero, the Total Canadian Revolving Credit Outstandings (with the aggregate amount of each Canadian Revolving Credit Lender’s risk participation and funded participation in Canadian L/C Obligations and Canadian Swingline Loans being deemed “held” by such Appropriate Lender for purposes of this definition); provided that the unused Canadian Revolving Credit Commitment of, and the portion of the Total Canadian Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Canadian Lenders.


 
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Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of (i) the aggregate Revolving Credit Commitments or (ii) if the Revolving Credit Commitments have expired or been terminated or reduced to zero, the Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition); provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
Required U.K. Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of (i) the aggregate U.K. Revolving Credit Commitments or (ii) if the U.K. Revolving Credit Commitments have expired or been terminated or reduced to zero, the Total U.K. Revolving Credit Outstandings (with the aggregate amount of each U.K. Revolving Credit Lender’s risk participation and funded participation in U.K. L/C Obligations and U.K. Swingline Loans being deemed “held” by such Appropriate Lender for purposes of this definition); provided that the unused U.K. Revolving Credit Commitment of, and the portion of the Total U.K. Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required U.K. Lenders.
Required U.S. Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of (i) the aggregate U.S. Revolving Credit Commitments or (ii) if the U.S. Revolving Credit Commitments have expired or been terminated or reduced to zero, the Total U.S. Revolving Credit Outstandings (with the aggregate amount of each U.S. Revolving Credit Lender’s risk participation and funded participation in U.S. L/C Obligations and U.S. Swingline Loans being deemed “held” by such Appropriate Lender for purposes of this definition); provided that the unused U.S. Revolving Credit Commitment of, and the portion of the Total U.S. Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required U.S. Lenders.
Responsible Officer” means the chief executive officer, president, chief financial officer, secretary, treasurer, assistant treasurer, statutory director or controller of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restatement Effective Date” means January 31, 2019.
Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.
Restricted Subsidiary” shall mean each direct or indirect Subsidiary of the Parent Borrower, other than the Unrestricted Subsidiaries; sometimes being collectively referred to herein as “Restricted Subsidiaries”.


 
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Revolving Credit Borrowing” means either a U.S. Revolving Credit Borrowing, a Canadian Revolving Credit Borrowing and/or a U.K. Revolving Credit Borrowing, as the context may require.
Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (i) make Revolving Credit Loans to the Borrowers pursuant to Section 2.01(a) and (b) and (ii) purchase participations in L/C Obligations and Swingline Loans, in the Dollar Equivalent of an aggregate principal amount at any one time outstanding not to exceed the amount (expressed in Dollars) set forth opposite such Revolving Credit Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement, in each case, as the same may be increased pursuant to Section 2.13.
Revolving Credit Commitment Increase” has the meaning specified in Section 2.13(a).
Revolving Credit Facility” means, at any time, the aggregate Dollar Equivalent amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
Revolving Credit Increase Effective Date” has the meaning specified in Section 2.13(f).
Revolving Credit Lender” means a U.S. Revolving Credit Lender, a Canadian Revolving Credit Lender and/or a U.K. Revolving Credit Lender, as the context may require.
Revolving Credit Loan” means a U.S. Revolving Credit Loan, a Canadian Revolving Credit Loan and/or a U.K. Revolving Credit Loan, as the context may require.
Revolving Credit Note” means a promissory note made by the applicable Borrower in favor of a Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form of Exhibit B.
Royalties” means the Dollar Equivalent of all royalties, fees, expense reimbursements and other amounts payable by a Loan Party under a License.
S&P” means Standard & Poor’s Financial Services LLC, a division of McGraw Hill, Inc., a New York corporation, and any successor thereto.
Sacopan” means Sacopan Inc., a corporation incorporated under the Business Corporations Act (Québec).
Sale/Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Parent Borrower or any of its Subsidiaries of any property, whether owned by the Parent Borrower or any of its Subsidiaries as of the Restatement Effective Date or later acquired, which has been or is to be sold or transferred by the Parent Borrower or any of its Subsidiaries to such Person or to any other Person from whom funds have been, or are to be, advanced by such Person on the security of such property.
Sanctioned Entity” means (a) a country or territory or a government of a country or territory, (b) an agency of the government of a country or territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target of Sanctions, including a target


 
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of any country sanctions program administered and enforced by OFAC or any other Governmental Authority.
Sanctioned Person” means, at any time (a) any Person whose named is listed on, or is owned or controlled by a person whose name is listed on, or acting on behalf of a person whose name is listed on, any Sanctions List, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.
Sanctions” means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by any Sanctions Authority.
Sanctions Authority” means (a) the governmental institutions and agencies of the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) the governmental institutions and agencies of the United Kingdom including Her Majesty’s Treasury (“HMT”), (e) the Government of Canada or (f) any other Governmental Authority with jurisdiction over any Loan Party or any of its Subsidiaries or over any Revolving Credit Lender or Cash Management Bank.
Sanctions List” means each list maintained or public designation made by any Sanctions Authority in respect of the targets or scope of the Sanctions that are administered and enforced by that Sanctions Authority including, without limitation (a) the “Specially Designated Nationals List” and the “Consolidated Non-SDN List” each administered and enforced by OFAC and (b) “Financial Sanctions: Consolidated List of Targets” and “Ukraine: list of persons subject to restrictive measures in view of Russia’s actions destabilising the situation in Ukraine” each administered and enforced by HMT, in each case as amended, supplemented or substituted from time to time.
Scheduled Unavailability Date” has the meaning provided in Section 2.14.
Seasonal Overadvance Period” means, during any calendar year, either (i) one period of 120 consecutive days during such calendar year or (ii) two periods of 90 consecutive days during such calendar year, as designated in writing by the Parent Borrower to the Administrative Agent at least 15 days prior to the start of any such Seasonal Overadvance Period; provided, that, in no case shall any Seasonal Overadvance Period commence sooner than 30 days following the termination of the immediately preceding Seasonal Overadvance Period.
SEC” means the United States Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party or a Subsidiary of Loan Party and any Cash Management Bank.
Secured Hedge Agreement” means any Swap Contract permitted under Article VI or VII that is entered into by and between any Loan Party or a Subsidiary of a Loan Party and any Hedge Bank, provided the Administrative Agent has received a written notice executed by the Borrower Representative


 
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(on behalf of such Loan Party or Subsidiary) and such Hedge Bank which notifies the Administrative Agent that such Swap Contract constitutes a Secured Hedge Agreement.
Secured Leverage Ratio” means, for any Measurement Period, the ratio of (i) (A) Indebtedness of the Parent Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) which is secured by a Lien on any assets of the Parent Borrower and its Subsidiaries as of the last day of such Measurement Period minus (B) the Unrestricted Cash as of such day in an amount not to exceed $50,000,000 to (ii) Consolidated EBITDA for such Measurement Period.
Secured Parties” means the U.S. Secured Parties, the Canadian Secured Parties and/or the U.K. Secured Parties, as the context may require.
Security Agreement” means the U.S. Security Agreement, the Canadian Security Agreement and/or the U.K. Security Agreement, as the context may require.
Senior Credit Obligations” means, with respect to each Loan Party, without duplication:
(i)    in the case of the Borrowers, all principal of and interest (including, without limitation, any interest which accrues after the commencement of any proceeding under any Debtor Relief Law with respect to any of the Borrowers, whether or not allowed or allowable as a claim in any such proceeding) on any Revolving Credit Loan, Swingline Loan or L/C Obligation under, or any Note issued pursuant to, this Agreement or any other Loan Document;
(ii)    all reasonable, documented, out-of-pocket fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by such Loan Party (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to such Loan Party, whether or not allowed or allowable as a claim in any such proceeding) pursuant to this Agreement or any other Loan Document;
(iii)    all reasonable, documented, out-of-pocket expenses of the any Agent as to which such Agent has a right to reimbursement by such Loan Party under Section 10.04(a) of this Agreement or under any other similar provision of any other Loan Document, including, without limitation, any and all sums advanced by the Collateral Agent to preserve the Collateral or preserve its Liens in the Collateral to the extent permitted under any Loan Document or applicable Law;
(iv)    all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement by such Loan Party under Section 10.04(b) of this Agreement or under any other similar provision of any other Loan Document; and
(v)    in the case of each Guarantor, all amounts now or hereafter payable by such Guarantor and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to the Borrowers or such Guarantor, whether or not allowed or allowable as a claim in any such proceeding) on the part of such Guarantor pursuant to this Agreement, the Guaranties or any other Loan Document;
together in each case with all renewals, modifications, consolidations or extensions thereof.


 
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Senior Credit Party” means each Revolving Credit Lender, each L/C Issuer, the Administrative Agent, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, the Collateral Agent and each Indemnitee and their respective successors and assigns, and “Senior Credit Parties” means any two or more of them, collectively.
Settlement Period” has the meaning specified in Section 2.11(g).
Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as such regulation is in effect on the date hereof.
Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (i) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (ii) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (iv) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital,(v) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business and (vi) with respect to any Person incorporated in England and Wales, (i) it is not unable and does not admit its inability to pay its debts as they fall due, (ii) it is not deemed to, or is not declared to, be unable to pay its debts under applicable law, (iii) it has not suspended or threatened to suspend making payments on any of it debts or (iv) by reason of actual or anticipated financial difficulties, it has not commenced negotiations with one or more of its creditors (other than any Secured Party) with a view to rescheduling any of its indebtedness. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability
Specified Conditions” means:
(i)    for any incurrence of Indebtedness contemplated by Section 7.02(v), that:
(A)    no Specified Default then exists and is continuing or would arise and be continuing immediately after giving effect to such transaction, unless such transaction would concurrently cure such Specified Default;
(B)    Pro Forma Excess Availability for each of the 30 days immediately prior to, and on the day of immediately after giving effect to, such transaction, will equal or exceed 12.5% of the Total Cap at such time; and
(C)    the Fixed Charge Coverage Ratio for the most recently completed Measurement Period ending on or prior to the date of such transaction (calculated on a Pro-Forma Basis without regard to whether or not a Covenant Trigger Event then exists) is at least 1.00 to 1.00;
(ii)    for (1) any Restricted Payment contemplated by Sections 7.06(v), (xi) and (xii), (2) any prepayment, redemption, defeasance, purchase of other satisfaction of Indebtedness contemplated by Section 7.14(iv), or any other applicable payment, transaction or


 
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event which requires the Specified Conditions to be satisfied (other than as provided in clause (i) above and clause (iii) below), that:
(A)    no Specified Default then exists and is continuing or would arise and be continuing immediately after giving effect to such transaction, unless such transaction would concurrently cure such Specified Default;
(B)    Pro Forma Excess Availability for each of the 30 days immediately prior to, and the day of immediately after giving effect to, such transaction, will equal or exceed 12.5% of the Total Cap at such time; and
(C)    the Fixed Charge Coverage Ratio for the most recently completed Measurement Period ending on or prior the date of such transaction (calculated on a Pro-Forma Basis without regard to whether or not a Covenant Trigger Event then exists) is at least 1.00 to 1.00;
(iii)    for any Permitted Acquisition contemplated by Section 7.03(vii), and for any Investment contemplated by Section 7.03(iii)(E), (xix) and (xx), that:
(A)    no Specified Default then exists and is continuing or would arise and be continuing immediately after giving effect to such transaction, unless such transaction would concurrently cure such Specified Default;
(B)    Pro Forma Excess Availability for each of the 30 days prior to, and the day of immediately after giving effect to, such transaction, will equal or exceed 12.5% of the Total Cap at such time; and
(C)    the Fixed Charge Coverage Ratio for the most recently completed Measurement Period ending on or prior to the date of such transaction (calculated on a Pro-Forma Basis without regard to whether or not a Covenant Trigger Event then exists) is at least 1.00 to 1.00;
Prior to undertaking any transaction the permissibility of which is subject to satisfaction of the Specified Conditions, the Loan Parties shall deliver to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that the applicable conditions contained in this definition have been satisfied.
Specified Default” means (i) any Event of Default specified in Section 8.01(a) or Section 8.01(f), (ii) any Event of Default specified in Section 8.01(b)(i) arising from the failure to comply with Article VII, (iii) any Event of Default specified in Section 8.01(b)(iv) arising from the failure to comply with Section 6.02(l) or (m), (iv) any Event of Default specified in Section 8.01(b)(i) or (v) arising from the failure to comply with Section 6.16, or (v) any Event of Default specified in Section 8.01(d) arising from any misrepresentations contained in any Borrowing Base Certificate.
Specified Payment Amount” means $500,000,000.
Specified Payments” means any prepayment of Indebtedness contemplated by Section 7.14(iv) (including any Investment permitted under Section 7.03(xxii)).


 
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Specified Transaction” means any Revolving Credit Commitment Increase, closing condition, Investment, incurrence of Indebtedness, Disposition, Restricted Payment or prepayment of Indebtedness in respect of which compliance with the financial covenant set forth in Section 7.11 is by the terms of this Agreement required to be calculated on a Pro-Forma Basis.
Spot Rate” has the meaning specified in Section 1.07.
Springing Maturity Condition” means that, as of the Springing Maturity Date, the 2023 Notes are either outstanding or have not been repurchased (and cancelled), redeemed, defeased, repaid, refinanced (with a maturity date later than the fifth anniversary of the Restatement Effective Date), satisfied and discharged or the Administrative Agent has not established the Springing Maturity Date Debt Reserve.
Springing Maturity Date” means the date that is 60 days prior to the maturity date with respect to the 2023 Notes.
Springing Maturity Date Debt Reserve” means, with respect to the outstanding Indebtedness under the 2023 Note Documents, an Availability Reserve in an amount equal to the sum of (i) such outstanding Indebtedness 60 days prior to the then scheduled maturity date of such Indebtedness plus (ii) any unpaid interest and fees accrued or accruing on such Indebtedness through such scheduled maturity date, as such sum shall be certified in writing by Parent to Administrative Agent before the date that is 60 days prior to such scheduled maturity date.
Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Borrower.
Subsidiary Guarantor” means each Subsidiary of the Parent Borrower on the Restatement Effective Date that is a party to a Guaranty and each Subsidiary of the Parent Borrower that becomes a party to any Guaranty after the Restatement Effective Date by execution of an Accession Agreement or other guaranty or guaranty supplement pursuant to Section 6.12, and “Subsidiary Guarantors” means any two or more of them.
Supermajority Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 66 2/3% of (i) the aggregate Revolving Credit Commitments or (ii) if the Revolving Credit Commitments have expired or been terminated or reduced to zero, the Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans being deemed “held” by such Appropriate Lender for purposes of this definition); provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders.
Swap Contract” means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward


 
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foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
Swap Obligations” of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with respect to such Person, whether or not allowed or allowable as a claim under any proceeding under any Debtor Relief Law) of such Person in respect of any Swap Contract, excluding any amounts which such Person is entitled to set-off against its obligations under applicable Law.
Swingline Borrowing” means a U.S. Swingline Borrowing, a Canadian Swingline Borrowing and/or a U.K. Swingline Borrowing, as the context may require.
Swingline Lender” means the U.S. Swingline Lender, Canadian Swingline Lender and/or a U.K. Swingline Lender, as the context may require.
Swingline Loans” means the U.S. Swingline Loans, Canadian Swingline Loans and/or U.K. Swingline Loans, as the context may require.
Swingline Sublimit” means the U.S. Swingline Sublimit, Canadian Swingline Sublimit and/or U.K. Swingline Sublimit, as the context may require.
Syndication Date” means the earlier of (i) the date which is 30 days after the Restatement Effective Date and (ii) the date on which the Administrative Agent determines in its discretion (in consultation with the Borrower Representative) that the primary syndication (and the resulting addition of Revolving Credit Lenders pursuant to Section 10.06(b)) has been completed.
Synthetic Lease Obligation” means the monetary obligation of a Person under (i) a so-called synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession of property (including Sale/Leaseback Transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
Tax Confirmation” means a confirmation by a Revolving Credit Lender or an L/C Issuer that the person beneficially entitled to interest payable to that Revolving Credit Lender or L/C Issuer in respect of an advance under a Loan Document is either:
(a)
a company resident in the United Kingdom for United Kingdom tax purposes;
(b)
a partnership, each member of which is (i) a company so resident in the United Kingdom; or (ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole


 
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of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
(c)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
Tax Credit” means a credit against, relief or remission for, or repayment of, any Taxes.
Tax Deduction” means a deduction or withholding from a payment under any Loan Document for and on account of any Taxes other than a deduction or withholding required by FATCA.
Taxes” or “Tax” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, remittances, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term Credit Facilities” means one or more debt facilities or debt securities providing for term loans, notes (excluding the notes issued pursuant to the Note Indentures), debentures or other similar long-term indebtedness, whether secured or unsecured, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith.
Threshold Amount” means $75,000,000.
Total Available Canadian Borrowing Base” means the sum of Canadian Borrowing Base plus the U.K. Borrowing Base plus the U.S. Borrowing Base provided that if a Cash Dominion Event occurs prior to the first anniversary of the date of this Agreement, the Total Available Canadian Borrowing Base will not include any amount of the U.K. Borrowing Base from the date of such Cash Dominion Event until the first day after the first anniversary of this Agreement.
Total Available U.K. Borrowing Base” means the sum of the U.K. Borrowing Base plus the Canadian Borrowing Base plus the U.S. Borrowing Base.
Total Available U.S. Borrowing Base” means the U.S. Borrowing Base plus the Canadian Borrowing Base.
Total Borrowing Base” means the sum of the U.S. Borrowing Base, the Canadian Borrowing Base and the U.K. Borrowing Base.
Total Canadian Revolving Credit Outstandings” means the then aggregate Outstanding Amount of all Canadian Revolving Credit Loans, Canadian Swingline Loans and Canadian L/C Obligations.
Total Cap” means, at any time, the lesser of (x) the Total Borrowing Base at such time and (y) the Revolving Credit Facility at such time.
Total Letter of Credit Sublimit” means an amount equal to $35,000,000 or the Equivalent amount thereof.
Total Leverage Ratio” means, for any Measurement Period, the ratio of (i) (A) Indebtedness of the Parent Borrower and its Subsidiaries (determined on a consolidated basis in accordance with GAAP)


 
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minus (B) the Unrestricted Cash as of such day in an amount not to exceed $50,000,000 to (ii) Consolidated EBITDA for such Measurement Period.
Total Revolving Credit Outstandings” means the then aggregate Outstanding Amount of all Revolving Credit Loans, Swingline Loans and L/C Obligations.
Total Swingline Sublimit” means an amount equal to $25,000,000 or the Equivalent amount thereof.
Total U.K. Revolving Credit Outstandings” means the then aggregate Outstanding Amount of all U.K. Revolving Credit Loans, U.K. Swingline Loans and U.K. L/C Obligations.
Total U.S. Revolving Credit Outstandings” means the then aggregate Outstanding Amount of all U.S. Revolving Credit Loans, U.S. Swingline Loans and U.S. L/C Obligations.
Type” means, with respect to a Revolving Credit Loan, its character as a Base Rate Loan, a Canadian Base Rate Loan, Eurocurrency Loan or BA Rate Loan.
Transaction” means, collectively, the transactions contemplated to occur on or prior to the date hereof by the Loan Documents.
UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
U.K.” and “United Kingdom” mean the United Kingdom of Great Britain and Northern Ireland.
U.K. Anti-Corruption Laws” means the U.K. Bribery Act 2010.
U.K. Base Rate” means, as to any day, (a) the rate per annum as published by ICE Benchmark Administration Limited (or in any case, any successor page or other commercially available source as the Administrative Agent may designate from time to time) as of 11:00 a.m., London time for thirty (30) day LIBOR for the relevant currency on such day, and, in any such case, if the applicable rate determined under this clause (a) is less than zero, such rate shall be deemed to be zero, plus (b) one percentage point.
U.K. Base Rate Loan” means a Revolving Credit Loan or a Swingline Loan denominated in Pounds Sterling that bears interest based on the U.K. Base Rate.
U.K. Borrowers” means the Lead U.K. Borrower, each U.K. Subsidiary thereof listed on the signature pages to this Agreement and each U.K. Subsidiary thereof that becomes a Borrower after the Restatement Effective Date by execution of an Accession Agreement as provided in Section 6.12.
U.K. Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant U.K. Borrower, which:


 
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(i)    where it relates to a U.K. Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 2.01, and
(A)    where the U.K. Borrower is an Original U.K. Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or
(B)    where the U.K. Borrower is an Additional U.K. Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that U.K. Borrower becomes an Additional U.K. Borrower; or
(ii)    where it relates to a U.K. Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender; and
(A)    where the U.K. Borrower is a U.K. Borrower as at the date on which that U.K. Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or
(B)    where the U.K. Borrower is not a U.K. Borrower as at the date on which that U.K. Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that U.K. Borrower becomes an Additional U.K. Borrower.
U.K. Borrowing Base” means, on any date of determination, an amount equal to the Dollar Equivalent of the Loan Value of the Eligible Collateral of the U.K. Borrowing Base Contributors, less the Dollar Equivalent of the Availability Reserve to the extent attributable to the U.K. Borrowing Base Contributors, the U.K. Finance Obligations or the U.K. Collateral in the Administrative Agent’s Credit Judgment on such date. Notwithstanding anything to the contrary contained in this Agreement, (a) the Eligible Collateral of the U.K. Borrowing Base Contributors will not be included in the U.K. Borrowing Base until the Administrative Agent has received, at the expense of the Loan Parties, a reasonably acceptable field examination report and a reasonably acceptable inventory appraisal with respect to the U.K. Borrowing Base Contributors and (b) the aggregate amount of Total Revolving Credit Outstandings based on the Eligible Collateral of the U.K. Guarantors shall not exceed the Dollar Equivalent of $15,000,000 at any time.
U.K. Borrowing Base Contributors” means (a) prior to the occurrence of a Cash Dominion Event, the U.K. Loan Parties and (b) on and after the occurrence of a Cash Dominion Event, the U.K. Borrowers.
U.K. Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a U.K. Revolving Credit Lender or an Affiliate of a U.K. Revolving Credit Lender, in its capacity as a party to such Cash Management Agreement, in each case in respect of services provided under such Cash Management Agreement to a U.K. Loan Party or a Foreign Subsidiary of a Loan Party; provided, that, HSBC UK Bank PLC, an affiliate of HSBC Bank USA, National Association, shall be a U.K. Cash Management Bank in respect of services provided by HSBC UK Bank PLC to a U.K. Loan Party or a Foreign Subsidiary pursuant to the Cash Management Agreements entered into prior to the Restatement Effective Date between HSBC UK Bank PLC and a U.K. Loan Party or a Foreign Subsidiary.


 
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U.K. Collateral” means all of the “Security Interests” referred to in the U.K. Collateral Documents and all of the other property and assets that are or are required under the terms hereof or of the U.K. Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the U.K. Secured Parties and the Canadian Secured Parties.
U.K. Collateral Documents” means, collectively, the U.K. Security Agreement, the U.K. Depositary Bank Agreements, any Additional Collateral Documents, any additional pledge or security agreements that create or purport to create a Lien on the U.K. Collateral in favor of the Collateral Agent for the benefit of the U.K. Secured Parties and the Canadian Secured Parties and any instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing.
U.K. Depositary Bank Agreement” means an agreement among a U.K. Loan Party, a bank or other depositary institution and the Collateral Agent, in form and substance reasonably acceptable to the Collateral Agent (including by way of notice to and acknowledgement from the relevant bank or depositary institution), as the same may be amended, modified or supplemented from time to time.
U.K. Excess Availability” means, at any time, (i) the lesser of (A) the U.K. Revolving Credit Facility and (B) (1) the Total Available U.K. Borrowing Base at such time, as determined from the most recent Borrowing Base Certificate delivered by the Borrower Representative to the Administrative Agent pursuant to Section 6.02(l) hereof minus (2) the Utilized Total Available U.K. Borrowing Base at such time, minus (ii) the Total U.S. Revolving Credit Outstandings.
U.K. Finance Obligations” means, at any date, (i) all Senior Credit Obligations in respect of the U.K. Revolving Credit Facility, (ii) all Swap Obligations permitted hereunder then owing under any U.K. Secured Hedge Agreement to any U.K. Hedge Bank and (iii) all Cash Management Obligations then owing under any U.K. Secured Cash Management Agreement to a Cash Management Bank.
U.K. Guarantors” means each U.K. Subsidiary of the Parent Borrower listed on Schedule 6.12 (if any) and each other U.K. Subsidiary of the Parent Borrower that shall execute and deliver an Accession Agreement or other guaranty or guaranty supplement, whether pursuant to Section 6.12 or otherwise.
U.K. Guaranty” means the English law governed Guarantee and Debenture made by the U.K. Guarantors in favor of the Collateral Agent and Administrative Agent, substantially in the form of Exhibit F-3, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12.
U.K. Hedge Bank” means any Hedge Bank that is party to a U.K. Secured Hedge Agreement.
U.K. L/C Advance” means, with respect to each U.K. Revolving Credit Lender, such U.K. Revolving Credit Lender’s funding of its participation in any U.K. L/C Borrowing in accordance with its Applicable Adjusted Percentage.
U.K. L/C Borrowing” means an extension of credit resulting from a drawing under any U.K. Letter of Credit which has not been reimbursed on the date when made or refinanced as a U.K. Revolving Credit Borrowing.
U.K. L/C Credit Extension” means, with respect to any U.K. Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.


 
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U.K. L/C Issuer” means (i) Wells Fargo Bank (London Branch) in its capacity as issuer of U.K. Letters of Credit hereunder, and its successor issuer or successors in such capacity, (ii) each U.K. Revolving Credit Lender listed in Schedule 2.03 hereto as the issuer of an Existing Letter of Credit; (iii) Bank of America, N.A. or any of its Affiliates, (iv) any Affiliate of Wells Fargo Bank (London Branch) and (v) any other Revolving Credit Lender which the Borrower Representative shall have designated as a “ U.K. L/C Issuer” by prior written notice to the Administrative Agent with the prior written consent of such other Revolving Credit Lender.
U.K. L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding U.K. Letters of Credit plus the aggregate of all Unreimbursed Amounts in respect of U.K. Letters of Credit, including all U.K. L/C Borrowings. For purposes of computing the amount available to be drawn under any U.K. Letter of Credit, the amount of such U.K. Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a U.K. Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such U.K. Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
U.K. Letter of Credit” means any standby letter of credit, sight commercial letter of credit or foreign guaranty (or with the consent of Administrative Agent, any similar instrument) issued under the U.K. Revolving Credit Facility.
U.K. Letter of Credit Sublimit” means an amount equal to $35,000,000 (or the Equivalent Amount thereof). The U.K. Letter of Credit Sublimit is part of, and not in addition to, the U.K. Revolving Credit Facility.
U.K. Loan Parties” means the U.K. Borrowers and the U.K. Guarantors, and each individually, a “U.K. Loan Party”.
U.K. Non-Bank Lender” means:
(a)
a Revolving Credit Lender or L/C Issuer that is a party to this Agreement on the date of this Agreement and gives notice in writing to the U.K. Borrower that it falls within clause (a)(ii) of the definition of U.K. Qualifying Lender (and is deemed to have given a Tax Confirmation by giving such notice); and
(b)
a Revolving Credit Lender or an L/C Issuer which becomes a Revolving Credit Lender or an L/C Issuer after the date of this Agreement that gives a Tax Confirmation in the Assignment and Assumption which it executes on becoming a Revolving Credit Lender or L/C Issuer.
U.K. Overadvance” has the meaning specified in Section 2.01(f).
U.K. Overadvance Loan” means a U.K. Revolving Credit Loan made when a U.K. Overadvance exists or is caused by the funding thereof.
U.K. Payment Account” means the Pounds Sterling account or the U.S. Dollar account of the Administrative Agent to which all monies constituting proceeds of U.K. Collateral shall be transferred from time to time in accordance with the provisions of the U.K. Security Agreement.
U.K. Pension Scheme” has the meaning defined in Section 5.24.


 
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U.K. Priority Payables Reserve” means as of any date of determination, a reserve in such amount as the Administrative Agent may determine in its reasonable Credit Judgment to reflect the full amount of any liabilities or amounts which (by virtue of any Liens or any statutory provision) rank or are capable of ranking in priority to the Administrative Agent’s Liens and/or for amounts which may represent costs relating to the enforcement of the Administrative Agent’s Liens including, without limitation, but only to the extent prescribed pursuant to English law and statute then in force, (i) amounts due to employees in respect of unpaid wages and holiday pay, (ii) the amount of all scheduled but unpaid pension contributions (iii) the “prescribed part” of floating charge realisations held for unsecured creditors, and (iv) the expenses and liabilities incurred by any administrator (or other insolvency officer) and any remuneration of such administrator (or other insolvency officer).
U.K. Protective Advances” has the meaning specified in Section 2.01(g).
U.K. Qualifying Lender” means:
(a)
a Revolving Credit Lender or L/C Issuer which is beneficially entitled to interest payable to that Revolving Credit Lender or L/C Issuer in respect of an advance under any Loan Document and is:
(i)
a Revolving Credit Lender or L/C Issuer:
(A)
that is a bank (as defined in section 879 of the ITA) making an advance under a Loan Document; or
(B)
in respect of an advance under a Loan Document by a person that was a bank (as defined in section 879 of the ITA) at the time that such advance was made,
and, in each case, which is within the charge to United Kingdom corporation tax with respect to any payments of interest made in respect of that advance (or, for the purposes of clause (A) above, would be within such charge as respects such payments apart from section 18A of the CTA); or
(i)
a Revolving Credit Lender or L/C Issuer which is:
(A)
a company resident in the United Kingdom for United Kingdom tax purposes;
(B)
a partnership, each member of which is (1) a company so resident in the United Kingdom; or (2) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;
(C)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or


 
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(D)
a U.K. Treaty Lender; or
(b)
a building society (as defined in section 880 of the ITA) making an advance under a Loan Document.
U.K. Release Conditions” has the meaning specified in Section 10.24.
U.K. Revolving Credit Borrowing” means a borrowing consisting of simultaneous U.K. Revolving Credit Loans of the same Type and having the same Interest Period made by each of the U.K. Revolving Credit Lenders pursuant to Section 2.01(c) and shall be deemed to include any U.K. Overadvance Loan and, to the extent attributed to the U.K. Collateral in the Administrative Agent’s Credit Judgment, Protective Advances made hereunder.
U.K. Revolving Credit Commitment” means, as to each U.K. Revolving Credit Lender, its obligation to (i) make U.K. Revolving Credit Loans to the U.K. Borrower pursuant to Section 2.01(c) and (ii) purchase participations in U.K. L/C Obligations and U.K. Swingline Loans, in an aggregate principal amount (expressed in Dollars) at any one time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on Schedule 2.01 under the caption “U.K. Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such U.K. Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement, in each case, as the same may be increased pursuant to Section 2.13. The U.K. Revolving Credit Commitments are a sublimit of the U.S. Revolving Credit Commitments.
U.K. Revolving Credit Exposure” means, with respect to any Appropriate Lender at any time, the Outstanding Amount of U.K. Revolving Credit Loans of such Revolving Credit Lender plus such U.K. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of U.K. L/C Obligations with respect to U.K. Letters of Credit plus such U.K. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of U.K. Swingline Loans.
U.K. Revolving Credit Facility” means, at any time, the Dollar Equivalent of the aggregate amount of the U.K. Revolving Credit Lenders’ U.K. Revolving Credit Commitments at such time.
U.K. Revolving Credit Commitment Increase Lender” has the meaning specified in Section 2.13(i)(iii).
U.K. Revolving Credit Lender” means each financial institution listed on Schedule 2.01 as a “U.K. Revolving Credit Lender”, as well as any Person that becomes a “U.K. Revolving Credit Lender” hereunder pursuant to Section 10.06 or 2.13.
U.K. Revolving Credit Loan” has the meaning specified in Section 2.01(c) and shall be deemed to include any U.K. Overadvance Loan and, to the extent attributed to the U.K. Collateral in the Administrative Agent’s Credit Judgment, U.K. Protective Advance made hereunder.
U.K. Secured Cash Management Agreement” means any Secured Cash Management Agreement that is entered into by and between any U.K. Loan Party or any Foreign Subsidiary of a Loan Party and any U.K. Cash Management Bank.
U.K. Secured Hedge Agreement” means any Secured Hedge Agreement that is entered into by and between any U.K. Loan Party or any Foreign Subsidiary of a Loan Party and any U.K. Hedge Bank.


 
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U.K. Secured Hedge Reserve” means, on any date of determination, with respect to the U.K. Borrowing Base, the aggregate amount of reserves established by the Administrative Agent from time to time in its Credit Judgment in respect of U.K. Finance Obligations under U.K. Secured Hedge Agreements, which shall be equal to the sum of the Dollar Equivalents of all such U.K. Finance Obligations as reported to the Administrative Agent by each U.K. Hedge Bank from time to time.
U.K. Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the U.K. Revolving Credit Lenders, the U.K. L/C Issuer, the U.K. Hedge Banks, the U.K. Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons to whom the U.K. Finance Obligations are owing and which are, or are purported to be, secured by the U.K. Collateral under the terms of the U.K. Collateral Documents.
U.K. Security Agreement” means the English law governed Guarantee and Debenture, substantially in the form of Exhibit F-3, granted by the U.K. Loan Parties in favor of the Collateral Agent and Administrative Agent.
U.K. Subsidiary” means any direct or indirect Subsidiary of the Parent Borrower which is incorporated or otherwise organized under the laws of the United Kingdom or any political subdivision thereof.
U.K. Swingline Borrowing” means a Borrowing consisting of U.K. Swingline Loans
U.K. Swingline Lender” means Wells Fargo Bank (London Branch) and its successors and assigns
U.K. Swingline Loan” has the meaning specified in Section 2.01(j).
U.K. Swingline Sublimit” means an amount equal to $15,000,000 or the Equivalent Amount thereof. The U.K. Swingline Sublimit is part of, and not in addition to, the U.K. Revolving Credit Facility.
U.K. Tax Payment” means the increase in a payment made by a U.K. Loan Party to the Administrative Agent or any a Revolving Credit Lender or L/C Issuer under Section 3.07(a) (Tax Gross-Up) or a payment under Section 3.07(c) (Tax Indemnity).
U.K. Treaty Lender” means a Revolving Credit Lender or L/C Issuer which:
(a)
is treated as a resident of a U.K. Treaty State for purposes of the relevant Treaty;
(b)
does not carry on a business in the United Kingdom through a permanent establishment with which that Revolving Credit Lender’s or L/C Issuer’s participation in any advance is effectively connected; and
(c)
fulfills any conditions which must be fulfilled under the relevant Treaty for residents of such U.K. Treaty State to obtain exemption from taxation imposed by the United Kingdom on interest subject to the completion of any procedural formalities.
U.K. Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.


 
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Unfunded Pension Liability” means (i) with respect to Pension Plans and Canadian Pension Plans, the excess of the present value of a plan’s benefit liabilities, over the current value of that plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan or Canadian Pension Plan pursuant to applicable Laws for the applicable plan year and includes any unfunded liability, going-concern or solvency deficiency as determined for purposes of Canadian Employee Benefits Legislation or pursuant to Section 412 of the Code (or any corresponding successor provision) for the applicable plan year and (ii) with respect to Foreign Plans, the excess of the present value of all nonforfeitable benefits of a Foreign Plan over the current value of the Foreign Plan’s assets allocable to such benefits, all determined in accordance with the respective most recent valuations for such Plan using the most recent actuarial assumptions and methods being used by the Foreign Plan’s actuaries for financial reporting under applicable accounting and reporting standards.
United States” and “US” mean the United States of America.
Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
Unrestricted Cash” means unencumbered and unrestricted cash and Cash Equivalents of the Parent Borrower and its Restricted Subsidiaries which are maintained in accounts with Wells Fargo Bank or its Affiliates.
Unrestricted Subsidiary” shall mean a Subsidiary of the Parent Borrower listed on Schedule 1.01C hereto and a Subsidiary of the Parent Borrower (other than the Canadian Borrower, any U.K. Borrower, any U.S. Borrower or any other borrower from time to time party hereto) designated in writing by Borrower Representative to Administrative Agent as an Unrestricted Subsidiary after the date hereof; provided, that,
(a)    the capitalization of, and/or other investments in, all Unrestricted Subsidiaries by the Parent Borrower and/or any of its Subsidiaries shall not exceed $75,000,000 in the aggregate; provided, that, if the capitalization of, and/or other investments in, all Unrestricted Subsidiaries by the Parent and/or any of its Subsidiaries exceeds or, after giving effect to the designation of an Unrestricted Subsidiary, would exceed $25,000,000, then Excess Availability shall be no less than 10% of the Revolving Credit Facility as of the date of the designation of any Unrestricted Subsidiary and immediately after giving effect thereto,
(b)    no Event of Default shall exist or have occurred and be continuing as of the date of the capitalization of, and/or other investments in, an Unrestricted Subsidiary or any payment in respect thereof and after giving effect thereto;
(c)    no Subsidiary shall be an Unrestricted Subsidiary if such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any assets of, the Parent Borrower or any Subsidiary of the Parent Borrower (other than any Subsidiary of such Subsidiary or any other Unrestricted Subsidiary);
(d)    all Indebtedness and other obligations of the Unrestricted Subsidiaries shall be non-recourse to Borrowers and Guarantors and their assets.
If any Subsidiary of the Parent Borrower is an Unrestricted Subsidiary, such Unrestricted Subsidiary shall not constitute a Loan Party.


 
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U.S. Base Rate” means the greatest of (a) the Federal Funds Rate plus one-half percent (½%), (b) the LIBO Rate (which rate shall be calculated based upon an interest period of one month and shall be determined on a daily basis), plus one percentage point, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is below zero, then the rate shall be deemed to be zero).
U.S. Base Rate Loans” means any Revolving Credit Loan or Swingline Loan bearing interest by reference to the U.S. Base Rate.
U.S. Borrowers” means the Lead U.S. Borrower, each U.S. Subsidiary thereof listed on the signature pages to this Agreement and each U.S. Subsidiary thereof that becomes a Borrower after the Restatement Effective Date by execution of an Accession Agreement as provided in Section 6.12.
U.S. Borrowing Base” means, on any date of determination, an amount equal to the Loan Value of the Eligible Collateral of the U.S. Loan Parties, less the Availability Reserve to the extent attributable to the U.S. Loan Parties, the U.S. Finance Obligations or the U.S. Collateral in the Administrative Agent’s Credit Judgment on such date.
U.S. Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a U.S. Revolving Credit Lender or an Affiliate of a U.S. Revolving Credit Lender, in its capacity as a party to such Cash Management Agreement, in each case in respect of services provided under such Cash Management Agreement to a U.S. Loan Party or a Subsidiary of a Loan Party; provided, that, HSBC UK Bank PLC, an affiliate of HSBC Bank USA, National Association, shall be a U.S. Cash Management Bank in respect of services provided by HSBC UK Bank PLC to a U.S. Loan Party or a Subsidiary of a Loan Party pursuant to the Cash Management Agreements entered into prior to the Restatement Effective Date between HSBC UK Bank PLC and a U.S. Loan Party or Subsidiary of a U.S. Loan Party.
U.S. Collateral” means all of the “Collateral” referred to in the U.S. Collateral Documents and all of the other property and assets that are or are required under the terms hereof or of the U.S. Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.
U.S. Collateral Documents” means, collectively, the U.S. Security Agreement, the U.S. Depositary Bank Agreements, any Additional Collateral Documents, any additional pledge or security agreements that create or purport to create a Lien on the U.S. Collateral in favor of the Collateral Agent for the benefit of the Secured Parties and any instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing.
U.S. Depositary Bank Agreement” means an agreement among a U.S. Loan Party, a bank or other depositary institution and the Collateral Agent, in form and substance reasonably acceptable to the Collateral Agent, as the same may be amended, modified or supplemented from time to time.
U.S. Excess Availability” means, at any time, (i) the lesser of (A) the U.S. Revolving Credit Facility and (B) (1) the Total Available U.S. Borrowing Base at such time, as determined from the most recent Borrowing Base Certificate delivered by the Borrower Representative to the Administrative Agent


 
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pursuant to Section 6.02(l) hereof minus (2) the Utilized Total Available U.S. Borrowing Base at such time, minus (ii) the Total U.S. Revolving Credit Outstandings.
U.S. Finance Obligations” means, at any date, (i) all Senior Credit Obligations in respect of the U.S. Revolving Credit Facility, (ii) all Swap Obligations permitted hereunder then owing under any U.S. Secured Hedge Agreement to any Hedge Bank and (iii) all Cash Management Obligations then owing under any U.S. Secured Cash Management Agreement to a Cash Management Bank.
U.S. Guarantors” means each U.S. Subsidiary of the Parent Borrower listed on Schedule 6.12 (if any) and each other U.S. Subsidiary of the Parent Borrower that shall execute and deliver an Accession Agreement or other guaranty or guaranty supplement, whether pursuant to Section 6.12 or otherwise.
U.S. Guaranty” means collectively, the Amended and Restated U.S. Guaranty made by the U.S. Guarantors in favor of the Secured Parties, substantially in the form of Exhibit E-1, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12.
U.S. Hedge Bank” means any Hedge Bank that is party to a U.S. Secured Hedge Agreement.
U.S. L/C Advance” means, with respect to each U.S. Revolving Credit Lender, such Revolving Credit Lender’s funding of its participation in any U.S. L/C Borrowing in accordance with its Applicable Adjusted Percentage.
U.S. L/C Borrowing” means an extension of credit resulting from a drawing under any U.S. Letter of Credit which has not been reimbursed on the date when made or refinanced as a U.S. Revolving Credit Borrowing.
U.S. L/C Credit Extension” means, with respect to any U.S. Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
U.S. L/C Issuer” means (i) Wells Fargo Bank in its capacity as issuer of U.S. Letters of Credit hereunder, and its successor issuer or successors in such capacity, (ii) each U.S. Revolving Credit Lender listed in Schedule 2.03 hereto as the issuer of an Existing Letter of Credit; (iii) Bank of America, N.A. or any of its Affiliates, (iv) any Affiliate of Wells Fargo Bank and (v) any other Revolving Credit Lender which the Borrower Representative shall have designated as a “ U.S. L/C Issuer” by prior written notice to the Administrative Agent with the prior written consent of such other Revolving Credit Lender.
U.S. L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding U.S. Letters of Credit plus the aggregate of all Unreimbursed Amounts in respect of U.S. Letters of Credit, including all U.S. L/C Borrowings. For purposes of computing the amount available to be drawn under any U.S. Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a U.S. Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
U.S. Letter of Credit” means any standby letter of credit, sight commercial letter of credit or foreign guaranty (or with the consent of Administrative Agent, any similar instrument) issued under the U.S. Revolving Credit Facility.


 
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U.S. Letter of Credit Sublimit” means an amount equal to $35,000,000. The U.S. Letter of Credit Sublimit is part of, and not in addition to, the U.S. Revolving Credit Facility.
U.S. Loan Parties” means the U.S. Borrowers and the U.S. Guarantors.
U.S. Overadvance” has the meaning specified in Section 2.01(d).
U.S. Overadvance Loan” means a U.S. Revolving Credit Loan made when a U.S. Overadvance exists or is caused by the funding thereof.
U.S. Payment Account” means the account of the Administrative Agent to which all monies constituting proceeds of U.S. Collateral shall be transferred from time to time in accordance with the provisions of the U.S. Security Agreement.
U.S. Protective Advances” has the meaning specified in Section 2.01(g).
U.S. Revolving Credit Borrowing” means a borrowing consisting of simultaneous U.S. Revolving Credit Loans of the same Type and, in the case of Eurocurrency Loans and BA Rate Loans, having the same Interest Period made by each of the U.S. Revolving Credit Lenders pursuant to Section 2.01(a) and shall be deemed to include any U.S. Overadvance Loan and, to the extent attributed to the U.S. Collateral in the Administrative Agent’s Credit Judgment, Protective Advances made hereunder.
U.S. Revolving Credit Commitment” means, as to each U.S. Revolving Credit Lender, its obligation to (i) make U.S. Revolving Credit Loans to the U.S. Borrower pursuant to Section 2.01(a) and (ii) purchase participations in U.S. L/C Obligations and U.S. Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on Schedule 2.01 under the caption “U.S. Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement, in each cases, as the same may be increased pursuant to Section 2.13.
U.S. Revolving Credit Commitment Increase Lender” has the meaning specified in Section 2.13(i)(i).
U.S. Revolving Credit Exposure” means, with respect to any Appropriate Lender at any time, the Outstanding Amount of U.S. Revolving Credit Loans of such Revolving Credit Lender plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of U.S. L/C Obligations with respect to U.S. Letters of Credit plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of U.S. Swingline Loans.
U.S. Revolving Credit Facility” means, at any time, the aggregate amount of the U.S. Revolving Credit Lenders’ U.S. Revolving Credit Commitments at such time.
U.S. Revolving Credit Lender” means each financial institution listed on Schedule 2.01 as a “U.S. Revolving Credit Lender”, as well as any Person that becomes a “U.S. Revolving Credit Lender” hereunder pursuant to Section 10.06 or 2.13.
U.S. Revolving Credit Loan” has the meaning specified in Section 2.01(a) and shall be deemed to include any U.S. Overadvance Loan and, to the extent attributed to the U.S. Collateral in the Administrative Agent’s Credit Judgment, U.S. Protective Advance made hereunder.


 
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U.S. Secured Cash Management Agreement” means any Secured Cash Management Agreement that is entered into by and between any U.S. Loan Party or any Subsidiary of a Loan Party and any Cash Management Bank.
U.S. Secured Hedge Agreement” means any Secured Hedge Agreement that is entered into by and between any U.S. Loan Party or any Subsidiary of a Loan Party and any Hedge Bank.
U.S. Secured Hedge Reserve” means, on any date of determination, with respect to the U.S. Borrowing Base, the aggregate amount of reserves established by the Administrative Agent from time to time in its Credit Judgment in respect of U.S. Finance Obligations under U.S. Secured Hedge Agreements, which shall be equal to the sum of the Dollar Equivalents of all such U.S. Finance Obligations as reported to the Administrative Agent by each U.S. Hedge Bank from time to time.
U.S. Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the U.S. Revolving Credit Lenders, the U.S. L/C Issuer, the U.S. Hedge Banks, the U.S. Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons to whom the U.S. Finance Obligations are owing and which are or are purported to be secured by the U.S. Collateral under the terms of the Collateral Documents.
U.S. Security Agreement” means the Amended and Restated Security Agreement, substantially in the form of Exhibit F-1 hereto, among the Parent Borrower, the U.S. Borrowers, the U.S. Guarantors and the Collateral Agent, as the same may be amended, modified or supplemented from time to time.
U.S. Subsidiary” means any direct or indirect Subsidiary of the Parent Borrower which is incorporated or otherwise organized under the laws of the United States or any political subdivision thereof.
U.S. Swingline Borrowing” means a Borrowing consisting of U.S. Swingline Loans
U.S. Swingline Lender” means Wells Fargo Bank and its successors and assigns
U.S. Swingline Loan” has the meaning specified in Section 2.01(h).
U.S. Swingline Sublimit” means an amount equal to $25,000,000. The U.S. Swingline Sublimit is part of, and not in addition to, the U.S. Revolving Credit Facility.
Utilized Total Available Canadian Borrowing Base” means, at any time, the sum of (i) the Total U.S. Revolving Credit Outstandings supported by the U.S. Borrowing Base and the Canadian Borrowing Base at such time, plus (ii) the Total U.K. Revolving Credit Outstandings supported by the U.K. Borrowing Base, the U.S. Borrowing Base and the Canadian Borrowing Base at such time provided that if a Cash Dominion Event occurs prior to the first anniversary of the date of this Agreement, the Total Available Canadian Borrowing Base will not include any amount of the U.K. Borrowing Base from the date of such Cash Dominion Event until the first day after the first anniversary of this Agreement.
Utilized Total Available U.K. Borrowing Base” means, at any time, the sum of (i) the Total U.S. Revolving Credit Outstandings supported by the U.S. Borrowing Base and the Canadian Borrowing Base at such time, plus (ii) the Total Canadian Revolving Credit Outstandings supported by the U.K. Borrowing Base, the U.S. Borrowing Base and the Canadian Borrowing Base at such time.


 
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Utilized Total Available U.S. Borrowing Base” means, at any time, the sum of (i) the Total Canadian Revolving Credit Outstandings supported by the Canadian Borrowing Base, the U.S. Borrowing Base and the U.K. Borrowing Base at such time, plus (ii) the Total U.K. Revolving Credit Outstandings supported by the U.K. Borrowing Base, the U.S. Borrowing Base and the Canadian Borrowing Base at such time.
VAT” means (a) any tax imposed in compliance with the Council Directive of November 28, 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in the immediately preceding clause (a), or imposed elsewhere.
Voting Securities” means Equity Interests of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or other controlling Persons of such Person (irrespective of whether, at the time, Equity Interests of any other class or classes of such Person shall have or might have voting power by reason of the happening of any contingency).
Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (A) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (B) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.
Wells Fargo Bank” means Wells Fargo Bank, National Association and its successors.
Wells Fargo Bank (London Branch)” means Wells Fargo Bank, National Association (London Branch) and its successors.
WFCF Canada” means Wells Fargo Capital Finance Corporation Canada and its successors.
Wholly-Owned Subsidiary” means, with respect to any Person at any date, any Subsidiary of such Person all of the shares of capital stock or other ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person. The terms “Wholly-Owned Canadian Subsidiary,” “Wholly-Owned U.K. Subsidiary”, “Wholly-Owned Domestic Subsidiary” and “Wholly-Owned Foreign Subsidiary” mean a Canadian Subsidiary, a U.K. Subsidiary, a Domestic Subsidiary and a Foreign Subsidiary, as applicable, that constitutes a Wholly-Owned Subsidiary. Unless otherwise specifically indicated, the term Wholly-Owned Subsidiary (and correlative terms of Wholly-Owned Canadian Subsidiary, Wholly-Owned U.K. Subsidiary, Wholly-Owned Domestic Subsidiary or Wholly-Owned Foreign Subsidiary) shall refer to the Wholly-Owned Subsidiaries (or Wholly-Owned Canadian Subsidiaries, Wholly-Owned U.K. Subsidiaries, Wholly-Owned Domestic Subsidiaries or Wholly-Owned Foreign Subsidiaries, as the case may be) of the Parent Borrower.
Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Section 1.02.    Other Interpretative Provisions. With reference to this agreement and each other loan document, unless otherwise specified herein or in such other loan document:


 
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(a)    The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and any reference to any law or regulation shall, unless otherwise specified, refer to such Law or regulation as amended, modified or supplemented from time to time and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding,” and the word “through” means “to and including.”
(c)    For purposes of any Collateral located in the Province of Québec or charged by any Deed of Hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property”, (ii) “tangible property” shall be deemed to include “corporeal property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security interest” and “mortgage” shall be deemed to include a “hypothec”, (vi) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Québec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (x) an “agent” shall be deemed to include a “mandatory” and (ix) “lien” shall include a “hypothec”, “right of retention”, “prior claim” and a resolutory clause, (xii) “construction liens” shall include “legal hypothecs”; (xiii) “joint and several” shall include “solidary”; (xiv) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”; (xv) “beneficial ownership” shall include “ownership on behalf of another as mandatory”; (xvi) “easement” shall include “servitude”; (xvii) “priority” shall include “prior claim”; (xviii) “survey” shall include “certificate of location and plan”; (xix) “state” shall include “province”; (xx) “fee simple title” shall include “absolute ownership”; (xxi) “accounts” shall include “claims”; (xxii) “legal title” shall include “holding title on behalf of an owner as mandatory or prete-nom”; (xxiii) “lease” shall include a “leasing contract”; and (xxiv) “guarantee” and “guarantor” shall include “suretyship” and “surety”, respectively. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English


 
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language only and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c'est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement.
(d)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e)    References to a “Person and its Subsidiaries” or to a “Person or any Subsidiary” (or words of similar import) means to the Parent Borrower and its Subsidiaries, unless otherwise specified.
(f)    References to “fair value” or “fair market value” (or words of similar import) mean the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party.
(g)    Notwithstanding anything to the contrary in this Agreement and the other Loan Documents, Canadian Finance Obligations, U.K. Financing Obligations, Senior Credit Obligations, Swap Obligations, U.S. Finance Obligations and Finance Obligations shall not include Excluded Swap Obligations.
(h)     For purposes of determining the Utilized Total Available Canadian Borrowing Base, the Utilized Total Available U.S. Borrowing Base and the Utilized Total Available U.K. Borrowing Base, as applicable, (i) the Total Canadian Revolving Credit Outstandings shall be deemed to be supported first, by the Canadian Borrowing Base, second, by the U.S. Borrowing Base and third, by the U.K. Borrowing Base, (ii) the Total U.K. Revolving Credit Outstandings shall be deemed to be supported first, by the U.K. Borrowing Base, second, by the Canadian Borrowing Base and, third, by the U.S. Borrowing Base, and (iii) the Total U.S. Revolving Credit Outstandings shall be deemed to be supported first, by the U.S. Borrowing Base and second, by the Canadian Borrowing Base.
Section 1.03.    Accounting Terms and Determinations.
(a)    Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b)    Changes in GAAP. Upon the adoption by any of the Borrowers of International Financial Reporting Standards (“IFRS”) or if at any time after August 27, 2018 any change in GAAP or in the application thereof would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower Representative or the Required Revolving Lenders shall so request, the Administrative Agent, the Revolving Credit Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such adoption of IFRS or such change in GAAP (subject to the approval of the Required Revolving Lenders, not to be unreasonably withheld, conditioned or delayed); provided that, until so amended, (i) such ratio or requirement (including the requirement to provide financial information compliant with GAAP) shall


 
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continue to be computed in accordance with GAAP as in effect on August 27, 2018 and (ii) the Borrower Representative shall provide to the Administrative Agent and the Revolving Credit Lenders financial statements and any other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such adoption of IFRS or such change in GAAP.
(c)    Computation of Certain Financial Covenants. Unless otherwise specified herein, all defined financial terms (and all other definitions used to determine such terms) shall be to those determined and computed in respect of the Parent Borrower and its Subsidiaries.
Section 1.04.    Rounding. Any financial ratios required to be maintained by any Group Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.05.    Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable); provided, that, a reference to a time of day with respect to any of the following shall mean the local time in London, England: (i) the receipt of any request to borrow, or convert or continue Loans to or for the account of any U.K. Borrower, (ii) any disbursement by Administrative Agent of Loans to a U.K. Borrower, (iii) the receipt of payments with respect to Loans to a U.K. Borrower, and (iv) at Administrative Agent’s option, any settlement of Loans to UK Borrower pursuant to Section 2.11(g).
Section 1.06.    Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time.
Section 1.07.    Currency Equivalents Generally. Any amount specified in this Agreement or any of the other Loan Documents to be in Dollars, Canadian Dollars or Pounds Sterling (as the case may be) shall also include the equivalent of such amount in any currency other than Dollars, Canadian Dollars or Pounds Sterling (as the case may be), such equivalent amount thereof in the applicable currency to be determined by the Administrative Agent at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars, Canadian Dollars or Pounds Sterling (as the case may be). For purposes of this Section 1.07, the “Spot Rate” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 A.M. on the date two Business Days prior to the date of such determination; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent and reasonably acceptable to the Borrowers if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01.    The Loans.
(a)    U.S. Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each U.S. Revolving Credit Lender severally agrees to make loans (each such loan, a “U.S.


 
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Revolving Credit Loan”) in Dollars to the U.S. Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment; provided, however, that after giving effect to any U.S. Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Total Cap at such time, (ii) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any U.S. Revolving Credit Lender, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations shall not exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment and (iii) the Total U.S. Revolving Credit Outstandings shall not exceed the lesser of (x) the U.S. Revolving Credit Facility and (y) the Net Total Available U.S. Borrowing Base. Within the limits of each U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment, and subject to the other terms and conditions hereof, the U.S. Borrowers may borrow under this Section 2.01(a), prepay under Section 2.04, and reborrow under this Section 2.01(a). U.S. Revolving Credit Loans shall be Base Rate Loans or Eurocurrency Loans, as further provided herein.
(b)    Canadian Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each Canadian Revolving Credit Lender severally agrees to make loans (each such loan, a “Canadian Revolving Credit Loan”) in Dollars, Canadian Dollars and Pounds Sterling to the Parent Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment; provided, however, that after giving effect to any Canadian Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Total Cap at such time, (ii) the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian L/C Obligations shall not exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment and (iii) the Total Canadian Revolving Credit Outstandings shall not exceed the lesser of (x) the Canadian Revolving Credit Facility and (y) the Net Total Available Canadian Borrowing Base. Within the limits of each Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Parent Borrower may borrow under this Section 2.01(b), prepay under Section 2.04, and reborrow under this Section 2.01(b). Canadian Revolving Credit Loans denominated in Canadian Dollars shall be BA Rate Loans or Canadian Base Rate Loans; Canadian Revolving Credit Loans denominated in Dollars shall be Base Rate Loans or Eurocurrency Loans; and Canadian Revolving Credit Loans denominated in Pounds Sterling shall be Eurocurrency Loans, in each case, as further provided herein.
(c)    U.K. Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each U.K. Revolving Credit Lender severally agrees to make loans (each such loan, a “U.K. Revolving Credit Loan”) in Dollars and Pounds Sterling to the U.K. Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such U.K. Revolving Credit Lender’s U.K. Revolving Credit Commitment; provided, however, that after giving effect to any U.K. Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Total Cap at such time, (ii) the aggregate Outstanding Amount of the U.K. Revolving Credit Loans of any U.K. Revolving Credit Lender, plus such U.K. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.K. L/C Obligations shall not exceed such U.K. Revolving Credit Lender’s U.K. Revolving Credit Commitment and (iii) the Total U.K. Revolving Credit Outstandings shall not exceed the lesser of (x) the U.K. Revolving Credit Facility and (y) the Net Total Available U.K. Borrowing Base. Within the limits of each U.K. Revolving Credit Lender’s U.K. Revolving Credit Commitment, and subject to the other terms and conditions hereof, the U.K. Borrower may borrow under this Section 2.01(c), prepay under Section 2.04, and


 
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reborrow under this Section 2.01(c). U.K. Revolving Credit Loans denominated in Pounds Sterling and Dollars shall be Base Rate Loans or Eurocurrency Loans, in each case, as further provided herein.
(d)    U.S. Overadvances. If the aggregate Outstanding Amount of the U.S. Revolving Credit Loans, U.S. Swingline Loans and U.S. L/C Obligations exceed the Net Total Available U.S. Borrowing Base at any time, the excess amount (a “U.S. Overadvance”) shall be payable by U.S. Borrowers within one Business Day of a demand by the Administrative Agent, but all such excess U.S. Overadvances shall nevertheless constitute U.S. Finance Obligations secured by the U.S. Collateral and entitled to all benefits of the Loan Documents. Unless its authority has been revoked in writing by Required U.S. Lenders, the Administrative Agent may require the U.S. Revolving Credit Lenders to honor requests for U.S. Overadvance Loans and to forbear from requiring the U.S. Borrowers to cure a U.S. Overadvance, when no other Event of Default is known to the Administrative Agent to have occurred and be continuing, as long as (i) the U.S. Overadvance does not continue for more than 45 consecutive days (and no U.S. Overadvance may exist for at least five consecutive days thereafter before further U.S. Overadvance Loans are required), (ii) the U.S. Overadvance is not known by the Administrative Agent to exceed ten percent (10%) of the Total Available U.S. Borrowing Base, and (iii) the U.S. Overadvance is not known by the Administrative Agent to exceed, when taken together with all Canadian Overadvances, all U.K. Overadvances and all Protective Advances, ten percent (10%) of the Total Available U.S. Borrowing Base. In no event shall the Administrative Agent require the U.S. Revolving Credit Lenders to honor requests for additional U.S. Overadvance Loans that would cause the (A) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any U.S. Revolving Credit Lender, plus such U.S. Revolving Credit Lender’s Applicable Adjusted Percentage of the Outstanding Amount of all U.S. L/C Obligations and U.S. Swingline Loans to exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment, or (B) the Total U.S. Revolving Credit Outstandings to exceed (x) the U.S. Revolving Credit Facility minus (y) the Availability Reserve to the extent attributable to the U.S. Loan Parties or the U.S. Collateral in the Administrative Agent’s Credit Judgment at such time. Any funding of a U.S. Overadvance Loan or sufferance of a U.S. Overadvance shall not constitute a waiver by the Administrative Agent or the Revolving Credit Lenders of the Event of Default caused thereby. In no event shall any Borrower or other Loan Party be deemed a beneficiary of this Section 2.01(d) nor authorized to enforce any of its terms.
(e)    Canadian Overadvances. If the aggregate Outstanding Amount of the Canadian Revolving Credit Loans, Canadian Swingline Loans and Canadian L/C Obligations exceed the Net Total Available Canadian Borrowing Base at any time, the excess amount (a “Canadian Overadvance”) shall be payable by the Parent Borrower within one Business Day of a demand by the Administrative Agent, but all such excess Canadian Overadvances shall nevertheless constitute Canadian Finance Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. Unless its authority has been revoked in writing by the Required Canadian Lenders, the Administrative Agent may require the Canadian Revolving Credit Lenders to honor requests for Canadian Overadvance Loans and to forbear from requiring the Parent Borrower to cure a Canadian Overadvance, when no other Event of Default is known to the Administrative Agent to have occurred and be continuing, as long as (i) the Canadian Overadvance does not continue for more than 45 consecutive days (and no Canadian Overadvance may exist for at least five consecutive days thereafter before further Canadian Overadvance Loans are required), (ii) the Dollar Equivalent of the Canadian Overadvance is not known by the Administrative Agent to exceed ten percent (10%) of the Total Available Canadian Borrowing Base, and (iii) the Dollar Equivalent of the Canadian Overadvance is not known by the Administrative Agent to exceed, when taken together with all U.S. Overadvances, all U.K. Overadvances and all Protective Advances, ten percent (10%) of the Total Available Canadian Borrowing Base. In no event shall the Administrative Agent require the Canadian Revolving Credit Lenders to honor requests for additional Canadian Overadvance


 
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Loans that would cause the (A) the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender, plus such Canadian Revolving Credit Lender’s Applicable Adjusted Percentage of the Outstanding Amount of all Canadian L/C Obligations and Canadian Swingline Loans to exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment, or (B) the Total Canadian Revolving Credit Outstandings to exceed (x) the Canadian Revolving Credit Facility minus (y) the Availability Reserve to the extent attributable to the Canadian Loan Parties or the Canadian Collateral in the Administrative Agent’s Credit Judgment at such time. Any funding of a Canadian Overadvance Loan or sufferance of a Canadian Overadvance shall not constitute a waiver by the Administrative Agent or the Revolving Credit Lenders of the Event of Default caused thereby. In no event shall any Borrower or other Loan Party be deemed a beneficiary of this Section 2.01(e) nor authorized to enforce any of its terms.
(f)    U.K. Overadvances. If the aggregate Outstanding Amount of the U.K. Revolving Credit Loans, U.K. Swingline Loans and U.K. L/C Obligations exceed the Net Total Available U.K. Borrowing Base at any time, the excess amount (a “U.K. Overadvance”) shall be payable by the U.K. Borrower within one Business Day of a demand by the Administrative Agent, but all such excess U.K. Overadvances shall nevertheless constitute U.K. Finance Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. Unless its authority has been revoked in writing by the Required U.K. Lenders, the Administrative Agent may require the U.K. Revolving Credit Lenders to honor requests for U.K. Overadvance Loans and to forbear from requiring the U.K. Borrower to cure a U.K. Overadvance, when no other Event of Default is known to the Administrative Agent to have occurred and be continuing, as long as (i) the U.K. Overadvance does not continue for more than 45 consecutive days (and no U.K. Overadvance may exist for at least five consecutive days thereafter before further U.K. Overadvance Loans are required), (ii) the U.K. Overadvance is not known by the Administrative Agent to exceed ten percent (10%) of the Total Available U.K. Borrowing Base, and (iii) the Dollar Equivalent of the U.K. Overadvance is not known by the Administrative Agent to exceed, when taken together with all U.S. Overadvances, all Canadian Overadvances and all U.K. Protective Advances, ten percent (10%) of the Total Available U.K. Borrowing Base. In no event shall the Administrative Agent require the U.K. Revolving Credit Lenders to honor requests for additional U.K. Overadvance Loans that would cause the (A) the aggregate Outstanding Amount of the U.K. Revolving Credit Loans of any U.K. Revolving Credit Lender, plus such U.K. Revolving Credit Lender’s Applicable Adjusted Percentage of the Outstanding Amount of all U.K. L/C Obligations and U.K. Swingline Loans to exceed such U.K. Revolving Credit Lender’s U.K. Revolving Credit Commitment, or (B) the Total U.K. Revolving Credit Outstandings to exceed (x) the U.K. Revolving Credit Facility minus (y) the Availability Reserve to the extent attributable to the U.K. Loan Parties or the U.K. Collateral in the Administrative Agent’s Credit Judgment at such time. Any funding of a U.K. Overadvance Loan or sufferance of a U.K. Overadvance shall not constitute a waiver by the Administrative Agent or the Revolving Credit Lenders of the Event of Default caused thereby. In no event shall any Borrower or other Loan Party be deemed a beneficiary of this Section 2.01(f) nor authorized to enforce any of its terms.
(g)    Protective Advances.
(i)    Authorization for Protective Advances. Subject to the terms and conditions set forth herein, the Administrative Agent is hereby authorized by the Borrowers and each Revolving Credit Lender from time to time in the Administrative Agent’s reasonable discretion, (A) after the occurrence and during the continuance of an Event of Default or (B) at any time that any of the other applicable conditions precedent set forth in Section 4.02 have not been satisfied, to make (x) U.S. Revolving Credit Loans not to exceed, when taken together with


 
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all Canadian Overadvances, U.K. Overadvances, U.S. Overadvances, Canadian Protective Advances and U.K. Protective Advances, ten percent (10%) of the Total Available U.S. Borrowing Base, to the U.S. Borrowers, jointly and severally, on behalf of the U.S. Revolving Credit Lenders (any of the advances described in this Section 2.01(g)(i)(B)(x) being herein referred to as “U.S. Protective Advances”), (y) Canadian Revolving Credit Loans not to exceed, when taken together with all Canadian Overadvances, U.S. Overadvances, U.K. Overadvances, U.S. Protective Advances and U.K. Protective Advances, ten percent (10%) of the Total Available Canadian Borrowing Base, to the Parent Borrower, on behalf of the Canadian Revolving Credit Lenders (any of the advances described in this Section 2.01(g)(i)(B)(y) being herein referred to as “Canadian Protective Advances”) or (z) U.K. Revolving Credit Loans not to exceed, when taken together with all U.K. Overadvances, U.S. Overadvances, Canadian Overadvances, U.S. Protective Advances and Canadian Protective Advances, ten percent (10%) of the Total Available U.K. Borrowing Base, to the U.K. Borrower, on behalf of the U.K. Revolving Lenders (any of the advances described in this Section 2.01(g)(i)(B)(z) being referred to as “U.K. Protective Advances” and, together with U.S. Protective Advances and Canadian Protective Advances, “Protective Advances”), in each case, which the Administrative Agent in each case deems reasonably necessary (1) to preserve or protect all or any portion of the Collateral, (2) to enhance the likelihood of, or maximize the amount of, repayment of the Revolving Credit Loans and other Finance Obligations or (3) to pay any amount chargeable to the Borrowers or any other Loan Party pursuant to the terms of this Agreement and the other Finance Documents; provided that the Required Revolving Lenders may at any time revoke the Administrative Agent’s authorization contained in this Section 2.01(g)(i) to make Protective Advances, any such revocation to be in writing and to become effective prospectively upon the Administrative Agent’s receipt thereof; and provided, further, that the Administrative Agent shall not knowingly make Protective Advances which would cause (1) the Total Revolving Credit Outstandings at such time to exceed the Revolving Credit Facility, (2) the Total Canadian Revolving Credit Outstandings at any time to exceed the Canadian Revolving Credit Facility, (3) the Total U.K. Revolving Credit Outstandings at any time to exceed the U.K. Revolving Credit Facility or (4) the Total U.S. Revolving Credit Outstandings at any time to exceed the U.S. Revolving Credit Facility. Protective Advances shall constitute Revolving Credit Loans and shall bear interest as Base Rate Loans, Canadian Base Rate Loans or Eurocurrency Loans, as applicable. Immediately upon the making of an Protective Advance, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Administrative Agent a risk participation in such Protective Advance in an amount equal to the product of such Revolving Credit Lender’s Applicable Adjusted Percentage multiplied by the amount of such Protective Advance.
(ii)    Maturity of Protective Advances. The principal amount of all Protective Advances shall be due and payable on the earliest of (A) one Business Day following demand for payment made by the Administrative Agent to the Borrower Representative, (B) the Maturity Date, (C) the occurrence of any bankruptcy or similar proceeding under any Debtor Relief Law with respect to any Borrower or (D) the acceleration of any Loan or the termination of the Commitments pursuant to Section 8.02.
(iii)    Refinancing of Protective Advances.
(A)    The Administrative Agent at any time in its sole and absolute discretion may request, on behalf of the Borrowers, jointly and severally (and each Borrower hereby irrevocably authorizes the Administrative Agent to so request on its behalf), that each


 
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Revolving Credit Lender make a Base Rate Loan, a Canadian Base Rate Loan or a Eurocurrency Loan, as applicable, in an amount equal to such Revolving Credit Lender’s Applicable Percentage of the amount of Protective Advances then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, Canadian Base Rate Loans or Eurocurrency Loans, as applicable. The Administrative Agent shall furnish the Borrower Representative with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Revolving Credit Lenders. Each Revolving Credit Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent for its account in immediately available funds at the Administrative Agent’s Office not later than 1:00 P.M. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.01(g)(iii)(B), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers, jointly and severally, in such amount.
(B)    If for any reason any Protective Advance cannot be refinanced by such a Borrowing in accordance with Section 2.01(g)(iii)(A), the request for Base Rate Loans, Canadian Base Rate Loans or Eurocurrency Loans, as applicable, submitted by the Administrative Agent as set forth herein shall be deemed to be a request by the Administrative Agent that each of the Revolving Credit Lenders fund its risk participation in the relevant Protective Advance and each Revolving Credit Lender’s payment to the Administrative Agent pursuant to Section 2.01(g)(iii)(A) shall be deemed payment in respect of such participation.
(C)    If any Revolving Credit Lender fails to make available to the Administrative Agent any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.01(g)(iii) by the time specified in Section 2.01(g)(iii), the Administrative Agent shall be entitled to recover from such Revolving Credit Lender, on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Administrative Agent at a rate per annum equal to the greater of the Federal Funds Rate and the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Revolving Credit Loan included in the relevant Borrowing or funded participation in the relevant Protective Advance, as the case may be. A certificate of the Administrative Agent submitted to any Revolving Credit Lender with respect to any amounts owing under this clause (C) shall be conclusive absent manifest error.
(D)    Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Protective Advances pursuant to this Section 2.01(g)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (x) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against the Administrative Agent, any Borrower or any other Person for any reason whatsoever, (y) the occurrence or


 
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continuance of a Default or (z) any other occurrence, event or condition, whether or not similar to any of the foregoing.
(iv)    Repayment of Participations.
(A)    At any time after any Revolving Credit Lender has purchased and funded a risk participation in an Protective Advance, if the Administrative Agent receives any payment on account of such Protective Advance, the Administrative Agent will distribute to such Revolving Credit Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.
(B)    If any payment received by the Administrative Agent in respect of principal or interest on any Protective Advance is required to be returned by the Administrative Agent under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Administrative Agent in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The obligations of the Revolving Credit Lenders under this clause shall survive the payment in full of the Senior Credit Obligations and the termination of this Agreement.
(v)    Interest for Account of Administrative Agent. The Administrative Agent shall be responsible for invoicing the Borrower Representative for interest on the Protective Advances. Until each Revolving Credit Lender funds its Base Rate Loan, Canadian Base Rate Loan or Eurocurrency Loan, as applicable, or risk participation pursuant to this Section 2.01(g) to refinance such Revolving Credit Lender’s Applicable Percentage of any Protective Advance, interest in respect of such Applicable Percentage shall be solely for the account of the Administrative Agent.
(vi)    Payments Directly to Administrative Agent. The Borrowers shall make all payments of principal and interest in respect of the Protective Advances directly to the Administrative Agent for its own account.
(h)    U.S. Swingline Borrowings. Subject to the terms and conditions set forth herein, the U.S. Swingline Lender agrees to make loans (each such loan, a “U.S. Swingline Loan”) in Dollars to the U.S. Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the U.S. Swingline Sublimit; provided, however, that after giving effect to any U.S. Swingline Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Total Cap at such time, (ii) the aggregate Outstanding Amount of all U.S. Swingline Loans shall not exceed the U.S. Swingline Sublimit, (iii) the aggregate Outstanding Amount of all U.S. Swingline Loans plus the aggregate Outstanding Amount of all Canadian Swingline Loans and U.K. Swingline Loans shall not exceed the Total Swingline Sublimit, and (iv) the Total U.S. Revolving Credit Outstanding shall not exceed the lesser of (x) the U.S. Revolving Credit Facility and (y) the Net Total Available U.S. Borrowing Base. Within the limits of the U.S. Swingline Sublimit, and subject to the other terms and conditions hereof, the U.S. Borrowers may borrow under this Section 2.01(h), prepay under Section 2.04, and reborrow under this Section 2.01(h). U.S. Swingline Loans shall be Base Rate Loans, shall (without duplication) constitute U.S. Revolving Credit Loans and shall bear interest at the Base Rate. Immediately upon the making of a U.S. Swingline Loan, each U.S. Revolving Credit Lender shall


 
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be deemed, and hereby irrevocably and unconditionally agrees to, purchase from the U.S. Swingline Lender a risk participation in such U.S. Swingline Loan in an amount equal to the product of such U.S. Revolving Credit Lender’s Applicable Adjusted Percentage multiplied by the amount of such U.S. Swingline Loan.
(i)    Canadian Swingline Borrowings. Subject to the terms and conditions set forth herein, the Canadian Swingline Lender severally agrees to make loans (each such loan, a “Canadian Swingline Loan”) in Dollars, Canadian Dollars and Pounds Sterling to the Canadian Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the Canadian Swingline Sublimit; provided, however, that after giving effect to any Canadian Swingline Borrowing, (i) the Total Revolving Credit Outstanding shall not exceed the Total Cap at such time, (ii) the aggregate Outstanding Amount of the Canadian Swingline Loans shall not exceed the Canadian Swingline Sublimit, (iii) the aggregate Outstanding Amount of all U.S. Swingline Loans plus the aggregate Outstanding Amount of all Canadian Swingline Loans and U.K. Swingline Loans shall not exceed the Total Swingline Sublimit, and (iv) the Total Canadian Revolving Credit Outstanding shall not exceed the lesser of (x) the Canadian Revolving Credit Facility and (y) the Net Total Available Canadian Borrowing Base. Within the limits of the Canadian Swingline Sublimit, and subject to the other terms and conditions hereof, the Parent Borrower may borrow under this Section 2.01(i), prepay under Section 2.04, and reborrow under this Section 2.01(i). Canadian Swingline Loans denominated in Canadian Dollars shall be BA Rate Loans, Canadian Swingline Loans denominated in Pounds Sterling shall be Base Rate Loans and Canadian Swingline Loans denominated in Dollars shall be Canadian Base Rate Loans. Canadian Swingline Loans shall (without duplication) constitute Canadian Revolving Credit Loans and shall bear interest at the BA Rate, Canadian Base Rate or U.K. Base Rate, as applicable. Immediately upon the making of a Canadian Swingline Loan, each Canadian Revolving Credit Lender shall be deemed, and hereby irrevocably and unconditionally agrees to, purchase from the Canadian Swingline Lender a risk participation in such Canadian Swingline Loan in an amount equal to the product of such Canadian Revolving Credit Lender’s Applicable Adjusted Percentage multiplied by the amount of such Canadian Swingline Loan.
(j)    U.K. Swingline Borrowings. Subject to the terms and conditions set forth herein, the U.K. Swingline Lender severally agrees to make loans (each such loan, a “U.K. Swingline Loan”) in Dollars and Pounds Sterling to the U.K. Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the U.K. Swingline Sublimit; provided, however, that after giving effect to any U.K. Swingline Borrowing, (i) the Total Revolving Credit Outstanding shall not exceed the Total Cap, (ii) the aggregate Outstanding Amount of the U.K. Swingline Loans shall not exceed the U.K. Swingline Sublimit, (iii) the aggregate Outstanding Amount of all U.K. Swingline Loans plus the aggregate Outstanding Amount of all U.S. Swingline Loans and Canadian Swingline Loans shall not exceed the Total Swingline Sublimit, and (iv) the Total U.K. Revolving Credit Outstanding shall not exceed the lesser of (x) the U.K. Revolving Credit Facility and (y) the Net Total Available U.K. Borrowing Base. Within the limits of the U.K. Swingline Sublimit, and subject to the other terms and conditions hereof, the U.K. Borrower may borrow under this Section 2.01(j), prepay under Section 2.04, and reborrow under this Section 2.01(j). U.K. Swingline Loans denominated in Dollars and Pounds Sterling shall be U.K. Base Rate Loans. U.K. Swingline Loans shall (without duplication) constitute U.K. Revolving Credit Loans and shall bear interest at the U.K. Base Rate. Immediately upon the making of a U.K. Swingline Loan, each U.K. Revolving Credit Lender shall be deemed, and hereby irrevocably and unconditionally agrees to, purchase from the U.K. Swingline Lender a risk participation in such U.K. Swingline Loan in an amount equal to the product of such U.K. Revolving Credit Lender’s Applicable Adjusted Percentage multiplied by the amount of such U.K. Swingline Loan.


 
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Section 2.02.    Borrowings, Conversions and Continuations of Loans.
(a)    Each Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each continuation of Eurocurrency Loans or BA Rate Loans shall be made upon the Borrower Representative’s (on its own behalf and on behalf of all other Borrowers) irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 1:00 P.M. (i) two Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Loans or BA Rate Loans or of any permitted conversion of such Eurocurrency Loans or BA Rate Loans to Base Rate Loans or Canadian Base Rate Loans, as the case may be, and (ii) on the requested date of any Borrowing of Base Rate Loans or Canadian Base Rate Loans; provided, however, that if a Borrower wishes to request Eurocurrency Loans or BA Rate Loans having an Interest Period other than one week, or one, two, three or six months in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Administrative Agent not later than 1:00 P.M. two Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 2:00 P.M., two Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the applicable Revolving Credit Lenders and, if such consent shall have not been obtained, the notice given by the Borrower Representative shall be deemed automatically amended (i) to specify an Interest Period of one month in the event such requested Interest Period was one week and six months in the event such requested Interest Period was nine or twelve months in duration and (ii) to be given at the time of such amendment, without the need for any further action by the Borrower Representative. Each telephonic notice by the Borrower Representative pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower Representative. Each Borrowing of, conversion to or continuation of Eurocurrency Loans or BA Rate Loans shall be in a principal amount of $1,000,000, Cdn. $1,000,000 or £1,000,000 or a whole multiple of $500,000, Cdn. $500,000 or £500,000, as applicable, in excess thereof. Except as provided in Section 2.01(g)(ii) or Section 2.03(c), each Borrowing of or conversion to Base Rate Loans or Canadian Base Rate Loans shall be in a principal amount of $500,000 or Cdn. $500,000 or a whole multiple of $100,000 or Cdn. $100,000, as applicable, in excess thereof (or, if less, the remaining unused portion of the U.S. Revolving Credit Facility in the case of a U.S. Revolving Credit Loan, the remaining unused portion of the Canadian Revolving Credit Facility in the case of a Canadian Revolving Credit Loan or the remaining unused portion of the U.K. Revolving Credit Facility in the case of a U.K. Revolving Credit Loan). Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether a Borrower is requesting a Revolving Credit Borrowing, a Swingline Borrowing, a conversion of Revolving Credit Loans from one Type to the other, or a continuation of Eurocurrency Loans or BA Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Revolving Credit Loans or Swingline Loans to be borrowed or to which existing Revolving Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) if applicable, the currency of the Borrowing, continuation or conversion. If the Borrower Representative fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower Representative fails to give a timely notice requesting a conversion or continuation, then the applicable Revolving Credit Loans shall be made as, or converted to, Base Rate Loans (in the case of U.S. Revolving Credit Loans and U.K. Revolving Credit Loans denominated in Dollars), Canadian Base Rate Loans (in the case of Canadian Revolving Credit Loans denominated in Dollars), BA Rate Loans (in the case of Canadian Revolving Credit Loans denominated in


 
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Canadian Dollars) and U.K. Base Rate Loans (in the case of U.K. Revolving Credit Loans or Canadian Revolving Credit Loans denominated in Pounds Sterling). Any such automatic conversion to Base Rate Loans, Canadian Base Rate Loans or U.K. Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Loans or BA Rate Loans. If the Borrower Representative requests a Borrowing of, conversion to, or continuation of Eurocurrency Loans or BA Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)    Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each applicable Revolving Credit Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the Borrower Representative, the Administrative Agent shall notify each applicable Revolving Credit Lender of the details of any automatic conversion to Base Rate Loans, Canadian Base Rate Loans or BA Rate Loans, as applicable, described in Section 2.02(a). In the case of a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Revolving Credit Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 3:00 P.M. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02, the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Wells Fargo Bank with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower Representative; provided, however, that if, on the date a Committed Loan Notice with respect to a Revolving Credit Borrowing is given by the Borrower Representative, there are L/C Borrowings outstanding under the applicable Facility, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to such Borrower as provided above.
(c)    Except as otherwise provided herein, a Eurocurrency Loan and a BA Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Loan or BA Rate Loan. Upon the occurrence and during the continuance of an Event of Default, (i) no Revolving Credit Loans to the U.S. Borrowers may be requested as, converted to or continued as Eurocurrency Loans without the consent of the Required U.S. Lenders, (ii) no Revolving Credit Loans to the Parent Borrower may be requested as, converted to or continued as Eurocurrency Loans or BA Rate Loans without the consent of the Required Canadian Lenders and (iii) no Revolving Credit Loans to the U.K. Borrower may be requested as, converted to or continued as Eurocurrency Loans without the consent of the Required U.K. Lenders.
(d)    Upon the request of the Borrower Representative, the Administrative Agent shall promptly notify the Borrower Representative and the applicable Revolving Credit Lenders of the interest rate applicable to any Interest Period for Eurocurrency Loans or BA Rate Loans. At any time that Base Rate Loans, Canadian Base Rate Loans or U.K. Base Rate Loans are outstanding, upon the request of the Borrower Representative, the Administrative Agent shall notify the Borrower Representative and the applicable Revolving Credit Lenders of Wells Fargo Bank’s or the Canadian Reference Bank’s, as applicable, base rate or prime rate then in effect.
(e)    After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as


 
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the same Type, there shall not be more than 10 Interest Periods in effect in respect of the Revolving Credit Facility.
(f)    Anything in this Section 2.02 to the contrary notwithstanding, (i) no Revolving Credit Loan denominated in Dollars may be borrowed, converted into or maintained as a BA Rate Loan, (ii) [reserved], (iii) no U.S. Revolving Credit Loan may be borrowed, converted into or maintained as a Canadian Base Rate Loan and (iv) the Borrowers may not select (A) Eurocurrency Loans or the BA Rate Loans for the initial Credit Extension or (B) Interest Periods for Eurocurrency Loans or BA Rate Loans that have a duration of more than one month prior to the Syndication Date.
(g)    All Borrowing requests which are not made on-line via the Administrative Agent’s electronic platform or portal shall be subject to (and unless the Administrative Agent elects otherwise in the exercise of its sole discretion, such Borrowing shall not be made until the completion of) the Administrative Agent’s authentication process (with results satisfactory to the Administrative Agent) prior to the funding of any such requested Revolving Credit Loan. At the Administrative Agent’s option, the Administrative Agent may elect to accept telephonic notice of any such request by the required time. Any such telephonic request shall be irrevocable and to the extent required by the Administrative Agent, shall be confirmed in writing by hand delivery, facsimile (or other form of electronic transmission, including on-line via the Administrative Agent’s electronic platform or portal, as the Administrative Agent may specify for such purpose) to the Administrative Agent within twenty-four (24) hours of the giving of such telephonic notice and signed (or otherwise authenticated) by the Borrower making such request or Borrower Representative on behalf of such Borrower. The failure to provide such written confirmation shall not affect the validity of the request.
Section 2.03.    Letters of Credit.
(a)    The Letter of Credit Commitment.
(i)    Subject to the terms and conditions set forth herein, (A) each U.S. L/C Issuer, in reliance upon the agreements of the U.S. Revolving Credit Lenders set forth in this Section 2.03, (1) agrees to (with respect to the U.S. Borrowers and their U.S. Subsidiaries) and may (with respect to Foreign Subsidiaries) from time to time on any business Day during the period from the Restatement Effective Date until the Letter of Credit Expiration Date, issue U.S. Letters of Credit for which a U.S. Borrower is the applicant and a U.S. Borrower or (subject to Section 2.03(1)) any of their U.S. Subsidiaries or Foreign Subsidiaries is an account party, and to amend or extend U.S. Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) agrees to honor drawings under the U.S. Letters of Credit; and (B) the U.S. Revolving Credit Lenders severally agree to participate in U.S. Letters of Credit and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any U.S. Letter of Credit, (v) the Total Revolving Credit Outstandings shall not exceed the Total Cap at such time, (w) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any U.S. Revolving Credit Lender, plus such U.S. Revolving Credit Lender’s Applicable Adjusted Percentage of the Outstanding Amount of all U.S. L/C Obligations and U.S. Swingline Loans shall not exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment, (x) the Total U.S. Revolving Credit Outstandings shall not exceed the lesser of (I) the U.S. Revolving Credit Facility and (II) the Net Total Available U.S. Borrowing Base, (y) the Dollar Equivalent of the Outstanding Amount of the U.S. L/C Obligations shall not exceed the U.S. Letter of Credit Sublimit and (z) the Outstanding Amount of the U.S. L/C Obligations plus the Outstanding Amount of the Canadian L/C Obligations plus the Outstanding Amount of the U.K.


 
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L/C Obligations shall not exceed the Total Letter of Credit Sublimit; and, provided, further, that no U.S. Letter of Credit may be issued, amended or extended in a currency other than Dollars or, subject to the approval of the applicable U.S. L/C Issuer, any Approved Foreign Currency. Each request by the Borrower Representative on behalf of a U.S. Borrower for the issuance or amendment of a U.S. Letter of Credit shall be irrevocable and subject to the authentication procedures of the applicable U.S. L/C Issuer, and shall specify the account party for such U.S. Letter of Credit, and shall be deemed to be a representation by the Borrower Representative that the U.S. L/C Credit Extension so requested complies with the conditions set forth in the provisos to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the U.S. Borrowers’ ability to obtain U.S. Letters of Credit shall be fully revolving, and accordingly the U.S. Borrowers may, during the foregoing period, obtain U.S. Letters of Credit to replace U.S. Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Restatement Effective Date shall be subject to and governed by the terms and conditions hereof.
(ii)    Subject to the terms and conditions set forth herein, (A) each Canadian L/C Issuer, in reliance upon the agreements of the Canadian Revolving Credit Lenders set forth in this Section 2.03, (1) agrees (with respect to the Parent Borrower and its Canadian Subsidiaries) and may (with respect to its other Foreign Subsidiaries) from time to time on any Business Day during the period from the Restatement Effective Date until the Letter of Credit Expiration Date, to issue Canadian Letters of Credit for which the Parent Borrower is the applicant and the Parent Borrower or (subject to Section 2.03(1)) any of its Foreign Subsidiaries is an account party, and to amend or extend Canadian Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) agrees to honor drawings under the Canadian Letters of Credit; and (B) the Canadian Revolving Credit Lenders severally agree to participate in Canadian Letters of Credit and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Canadian Letter of Credit, (v) the Total Revolving Credit Outstandings shall not exceed the Total Cap at such time, (w) the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender, plus such Canadian Revolving Credit Lender’s Applicable Adjusted Percentage of the Outstanding Amount of all Canadian L/C Obligations and Canadian Swingline Loans shall not exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment, (x) the Total Canadian Revolving Credit Outstandings shall not exceed the lesser of (I) the Canadian Revolving Credit Facility and (II) the Net Total Available Canadian Borrowing Base, (y) the Outstanding Amount of the Canadian L/C Obligations shall not exceed the Canadian Letter of Credit Sublimit and (z) the Outstanding Amount of the U.S. L/C Obligations plus the Outstanding Amount of the Canadian L/C Obligations plus the Outstanding Amount of the U.K. L/C Obligations shall not exceed the Total Letter of Credit Sublimit; and provided, further, that no Canadian Letter of Credit may be issued, amended or extended in a currency other than Dollars, Canadian Dollars or Pounds Sterling or, subject to the approval of the applicable Canadian L/C Issuer, any Approved Foreign Currency. Each request by the Borrower Representative on behalf of the Parent Borrower for the issuance or amendment of a Canadian Letter of Credit shall be irrevocable and subject to the authentication procedures of the applicable Canadian L/C Issuer, and shall specify the account party for such Canadian Letter of Credit, and shall be deemed to be a representation by the Borrower Representative that the Canadian L/C Credit Extension so requested complies with the conditions set forth in the provisos to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Parent Borrower’s ability to obtain Canadian Letters of Credit shall be fully revolving, and accordingly the Parent Borrower may,


 
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during the foregoing period, obtain Canadian Letters of Credit to replace Canadian Letters of Credit that have expired or that have been drawn upon and reimbursed.
(iii)    Subject to the terms and conditions set forth herein, (A) each U.K. L/C Issuer, in reliance upon the agreements of the U.K. Revolving Credit Lenders set forth in this Section 2.03, (1) agrees (with respect to the U.K. Borrower and its U.K. Subsidiaries) and may (with respect to its other Foreign Subsidiaries) from time to time on any Business Day during the period from the Restatement Effective Date until the Letter of Credit Expiration Date, to issue U.K. Letters of Credit for which a U.K. Borrower is the applicant and a U.K. Borrower or (subject to Section 2.03(1)) any of its U.K. Subsidiaries or Foreign Subsidiaries is an account party, and to amend or extend U.K. Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) agrees to honor drawings under the U.K. Letters of Credit; and (B) the U.K. Revolving Credit Lenders severally agree to participate in U.K. Letters of Credit and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any U.K. Letter of Credit, (v) the Total Revolving Credit Outstandings shall not exceed the Total Cap at such time, (w) the aggregate Outstanding Amount of the U.K. Revolving Credit Loans of any U.K. Revolving Credit Lender, plus such U.K. Revolving Credit Lender’s Applicable Adjusted Percentage of the Outstanding Amount of all U.K. L/C Obligations and U.K. Swingline Loans shall not exceed such U.K. Revolving Credit Lender’s U.K. Revolving Credit Commitment, (x) the Total U.K. Revolving Credit Outstandings shall not exceed the lesser of (I) the U.K. Revolving Credit Facility and (II) the Net Total Available U.K. Borrowing Base, (y) the Outstanding Amount of the U.K. L/C Obligations shall not exceed the U.K. Letter of Credit Sublimit and (z) the Outstanding Amount of the U.S. L/C Obligations plus the Outstanding Amount of the Canadian L/C Obligations plus the Outstanding Amount of the U.K. L/C Obligations shall not exceed the Total Letter of Credit Sublimit; and provided, further, that no U.K. Letter of Credit may be issued, amended or extended in a currency other than Dollars or Pounds Sterling or, subject to the approval of the applicable U.K. L/C Issuer, any Approved Foreign Currency. Each request by the Borrower Representative on behalf of the U.K. Borrower for the issuance or amendment of a U.K. Letter of Credit shall be irrevocable and subject to the authentication procedures of the applicable U.K. L/C Issuer, and shall specify the account party for such U.K. Letter of Credit, and shall be deemed to be a representation by the Borrower Representative that the U.K. L/C Credit Extension so requested complies with the conditions set forth in the provisos to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the U.K. Borrower’s ability to obtain U.K. Letters of Credit shall be fully revolving, and accordingly the U.K. Borrower may, during the foregoing period, obtain U.K. Letters of Credit to replace U.K. Letters of Credit that have expired or that have been drawn upon and reimbursed.
(iv)    No U.S. L/C Issuer, Canadian L/C Issuer or U.K. L/C Issuer, as applicable, shall issue any Letter of Credit if:
(A)    subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months (or, in the case of any commercial Letter of Credit, 120 days) after the date of issuance, unless the Administrative Agent and such L/C Issuer has approved such expiry date; or
(B)    subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the U.S. Revolving Credit Lenders, Canadian Revolving Credit Lenders or U.K. Revolving Credit


 
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Lenders, as applicable (excluding in each case Defaulting Lenders), have approved such expiry date.
(v)    No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Restatement Effective Date and which the L/C Issuer in good faith deems material to it;
(B)    the issuance of such Letter of Credit would violate one or more established policies of the L/C Issuer applicable to letters of credit generally;
(C)    except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, Cdn. $100,000 or £100,000, as applicable, in the case of a commercial Letter of Credit, or $500,000, Cdn. $500,000 or £500,000, as applicable, in the case of a standby Letter of Credit;
(D)    such Letter of Credit is to be denominated in a currency other than (1) in the case of a U.S. Letter of Credit, Dollars (except as provided by Section 2.03(a)(i)), (2) in the case of Canadian Letters of Credit, Dollars, Canadian Dollars or Pounds Sterling (except as provided in Section 2.03(a)(ii)) or (3) in the case of U.K. Letters of Credit, Dollars or Pounds Sterling (except as provided in Section 2.03(a)(iii)); or
(E)    a default of any Revolving Credit Lender’s obligations to fund under Section 2.03(c) exists or any Revolving Credit Lender is at such time an Impacted Lender hereunder, unless the applicable L/C Issuer has entered into arrangements satisfactory to such L/C Issuer with the Borrower Representative or such Revolving Credit Lender to eliminate the L/C Issuer’s risk with respect to such Revolving Credit Lender; provided that, if any such L/C Issuer refuses to issue a Letter of Credit, such refusal shall not prohibit any Borrower from requesting any other L/C Issuer or Revolving Credit Lender to issue such Letter of Credit or any other L/C Issuer or Revolving Credit Lender from issuing such Letter of Credit.
(vi)    The applicable L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof; provided that, if any such L/C Issuer refuses to amend a Letter of Credit, such refusal shall not prohibit any Borrower from requesting any other L/C Issuer or Revolving Credit Lender to issue such Letter of Credit in its amended form or any other L/C Issuer or Revolving Credit Lender from issuing such Letter of Credit in its amended form.


 
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(vii)    The applicable L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit; provided that, if any such L/C Issuer refuses to amend a Letter of Credit, such refusal shall not prohibit any Borrower from requesting any other L/C Issuer or Revolving Credit Lender to issue such Letter of Credit in its amended form or any other L/C Issuer or Revolving Credit Lender from issuing such Letter of Credit in its amended form.
(viii)    Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b)    Procedures for Issuance and Amendment of Letters of Credit