CREDIT AGREEMENT dated as of December 13, 2022 among MASONITE INTERNATIONAL CORPORATION, as Holdings, MASONITE CORPORATION, as the Borrower, THE LENDERS FROM TIME TO TIME PARTY HERETO, JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral...
EXECUTION VERSION
dated as of December 13, 2022
among
MASONITE INTERNATIONAL CORPORATION,
as Holdings,
as Holdings,
MASONITE CORPORATION,
as the Borrower,
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
as Administrative Agent and Collateral Agent
and
JPMORGAN CHASE BANK, N.A.,
and
CIBC CAPITAL MARKETS,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page | |||||||||||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | 1 | ||||||||||
Section 1.01 Defined Terms | 1 | ||||||||||
Section 1.02 Other Interpretative Provisions | 46 | ||||||||||
Section 1.03 Accounting Terms and Determinations | 47 | ||||||||||
Section 1.04 Rounding | 48 | ||||||||||
Section 1.05 Times of Day | 48 | ||||||||||
Section 1.06 Interest Rates; Benchmark Notification | 48 | ||||||||||
Section 1.07 Divisions | 48 | ||||||||||
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS | 49 | ||||||||||
Section 2.01 The Loans | 49 | ||||||||||
Section 2.02 Borrowings, Conversions and Continuations of Loans | 49 | ||||||||||
Section 2.03 Prepayments | 50 | ||||||||||
Section 2.04 Termination of Commitments | 51 | ||||||||||
Section 2.05 Repayment of Loans | 52 | ||||||||||
Section 2.06 Interest | 52 | ||||||||||
Section 2.07 Fees | 52 | ||||||||||
Section 2.08 Computation of Interest and Fees | 53 | ||||||||||
Section 2.09 Evidence of Debt | 53 | ||||||||||
Section 2.10 Payments Generally; Administrative Agent’s Clawback | 53 | ||||||||||
Section 2.11 Sharing of Payments by Lenders | 57 | ||||||||||
Section 2.12 Increase in Facility | 57 | ||||||||||
Section 2.13 Alternate Rate of Interest. | 60 | ||||||||||
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY | 63 | ||||||||||
Section 3.01 Taxes | 63 | ||||||||||
Section 3.02 Illegality | 67 | ||||||||||
Section 3.03 Inability to Determine Rates | 67 | ||||||||||
Section 3.04 Increased Costs | 68 | ||||||||||
Section 3.05 Compensation for Losses | 69 | ||||||||||
Section 3.06 Mitigation Obligations; Replacement of Lenders | 69 | ||||||||||
Section 3.07 Survival | 70 | ||||||||||
ARTICLE IV CONDITIONS PRECEDENT | 70 | ||||||||||
Section 4.01 Effective Date Conditions | 70 | ||||||||||
Section 4.02 Closing Date Conditions | 73 | ||||||||||
ARTICLE V REPRESENTATIONS AND WARRANTIES | 76 | ||||||||||
Section 5.01 Existence, Qualification and Power | 76 | ||||||||||
Section 5.02 Authorization; No Contravention | 76 | ||||||||||
Section 5.03 Governmental Authorization; Other Consents | 76 | ||||||||||
Section 5.04 Binding Effect | 77 | ||||||||||
Section 5.05 Financial Condition; No Material Adverse Effect | 77 |
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Section 5.06 Litigation | 78 | ||||||||||
Section 5.07 No Default | 78 | ||||||||||
Section 5.08 Ownership of Property; Liens; Investments | 78 | ||||||||||
Section 5.09 Environmental Compliance | 79 | ||||||||||
Section 5.10 Insurance | 80 | ||||||||||
Section 5.11 Taxes | 80 | ||||||||||
Section 5.12 ERISA; Foreign Pension Plans; Employee Benefit Arrangements | 80 | ||||||||||
Section 5.13 Subsidiaries; Equity Interests; Loan Parties | 82 | ||||||||||
Section 5.14 Margin Regulations; Investment Company Act | 83 | ||||||||||
Section 5.15 Disclosure | 83 | ||||||||||
Section 5.16 Compliance with Law | 83 | ||||||||||
Section 5.17 Intellectual Property | 83 | ||||||||||
Section 5.18 Solvency | 84 | ||||||||||
Section 5.19 Casualty, Etc | 84 | ||||||||||
Section 5.20 Labor Matters | 84 | ||||||||||
Section 5.21 Collateral Documents | 84 | ||||||||||
Section 5.22 Immaterial Subsidiaries | 85 | ||||||||||
Section 5.23 Patriot Act; Beneficial Ownership | 85 | ||||||||||
Section 5.24 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws | 85 | ||||||||||
Section 5.25 Affected Financial Institutions | 85 | ||||||||||
ARTICLE VI AFFIRMATIVE COVENANTS | 86 | ||||||||||
Section 6.01 Financial Statements | 86 | ||||||||||
Section 6.02 Certificates; Other Information | 87 | ||||||||||
Section 6.03 Notices | 89 | ||||||||||
Section 6.04 Payment of Obligations | 90 | ||||||||||
Section 6.05 Preservation of Existence Etc | 90 | ||||||||||
Section 6.06 Maintenance of Properties | 90 | ||||||||||
Section 6.07 Maintenance of Insurance | 90 | ||||||||||
Section 6.08 Compliance with Laws | 91 | ||||||||||
Section 6.09 Books and Records | 91 | ||||||||||
Section 6.10 Inspection Rights | 91 | ||||||||||
Section 6.11 Use of Proceeds | 91 | ||||||||||
Section 6.12 Additional Loan Parties; Additional Security | 92 | ||||||||||
Section 6.13 Compliance with Environmental Laws | 95 | ||||||||||
Section 6.14 Further Assurances | 95 | ||||||||||
Section 6.15 Post-Effective Date and Post-Closing Obligations | 96 | ||||||||||
Section 6.16 Information Regarding Collateral | 96 | ||||||||||
Section 6.17 Pension Plans | 96 | ||||||||||
Section 6.18 Maintenance of Policies and Procedures | 96 | ||||||||||
ARTICLE VII NEGATIVE COVENANTS | 97 | ||||||||||
Section 7.01 Restriction on Liens | 97 | ||||||||||
Section 7.02 Limitation on Indebtedness | 100 | ||||||||||
Section 7.03 Investments | 103 | ||||||||||
Section 7.04 Fundamental Changes | 107 |
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Section 7.05 Dispositions | 108 | ||||||||||
Section 7.06 Restricted Payments, etc | 111 | ||||||||||
Section 7.07 Change in Nature of Business | 112 | ||||||||||
Section 7.08 Transactions with Affiliates | 113 | ||||||||||
Section 7.09 Burdensome Agreements | 114 | ||||||||||
Section 7.10 Use of Proceeds | 116 | ||||||||||
Section 7.11 Financial Covenant | 116 | ||||||||||
Section 7.12 Amendment of Organizational Documents | 116 | ||||||||||
Section 7.13 Accounting Changes | 116 | ||||||||||
Section 7.14 Prepayments of Indebtedness, etc | 116 | ||||||||||
Section 7.15 Amendments of Transaction Documents and Indebtedness | 117 | ||||||||||
Section 7.16 Certain Activities | 117 | ||||||||||
Section 7.17 Establishment of Defined Benefit Plan | 117 | ||||||||||
Section 7.18 Independence of Covenants | 118 | ||||||||||
ARTICLE VIII EVENTS OF DEFAULT | 118 | ||||||||||
Section 8.01 Events of Default | 118 | ||||||||||
Section 8.02 Remedies upon Event of Default | 121 | ||||||||||
Section 8.03 Application of Funds | 121 | ||||||||||
ARTICLE IX AGENCY PROVISIONS | 123 | ||||||||||
Section 9.01 Authorization and Action | 123 | ||||||||||
Section 9.02 Agent’s Reliance, Indemnification, Etc. | 125 | ||||||||||
Section 9.03 Reliance by Agent | 126 | ||||||||||
Section 9.04 Successor Agent | 127 | ||||||||||
Section 9.05 Acknowledgement of Lenders. | 128 | ||||||||||
Section 9.06 Collateral and Guaranty Matters | 129 | ||||||||||
Section 9.07 Intercreditor Agreement. | 130 | ||||||||||
Section 9.08 Secured Cash Management Agreements and Secured Hedge Agreements | 131 | ||||||||||
Section 9.09 Credit Bidding | 132 | ||||||||||
ARTICLE X MISCELLANEOUS | 133 | ||||||||||
Section 10.01 Amendments, Etc | 133 | ||||||||||
Section 10.02 Notices; Effectiveness; Electronic Communication | 135 | ||||||||||
Section 10.03 No Waiver; Cumulative Remedies; Enforcement | 137 | ||||||||||
Section 10.04 Expenses; Indemnity; Damage Waiver. | 138 | ||||||||||
Section 10.05 Payments Set Aside | 140 | ||||||||||
Section 10.06 Successors and Assigns | 140 | ||||||||||
Section 10.07 Treatment of Certain Information; Confidentiality | 144 | ||||||||||
Section 10.08 Right of Setoff | 145 | ||||||||||
Section 10.09 Interest Rate Limitation | 145 | ||||||||||
Section 10.10 Counterparts; Integration; Effectiveness | 146 | ||||||||||
Section 10.11 Survival of Representations and Warranties | 146 | ||||||||||
Section 10.12 Severability | 146 | ||||||||||
Section 10.13 Replacement of Lenders | 147 | ||||||||||
Section 10.14 Governing Law; Jurisdiction Etc | 147 |
iii
Section 10.15 Waiver of Jury Trial | 148 | ||||||||||
Section 10.16 No Advisory or Fiduciary Responsibility | 149 | ||||||||||
Section 10.17 Electronic Execution | 149 | ||||||||||
Section 10.18 USA Patriot Act Notice | 150 | ||||||||||
Section 10.19 Judgment Currency | 151 | ||||||||||
Section 10.20 Anti-Money Laundering Legislation | 151 | ||||||||||
Section 10.21 Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 152 | ||||||||||
Section 10.22 Certain ERISA Matters. | 152 | ||||||||||
Section 10.23 Acknowledgement Regarding Any Supported QFCs. | 153 | ||||||||||
Section 10.24 Intercreditor Governs | 154 |
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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 Note | ||||||||||
Exhibit C | Form of Assignment and Assumption | ||||||||||
Exhibit D | Form of Compliance Certificate | ||||||||||
Exhibit E | Form of Guaranty | ||||||||||
Exhibit F-1 | Form of Security Agreement | ||||||||||
Exhibit F-2 | Form of Perfection Certificate | ||||||||||
Exhibit G | Form of Loan Party Accession Agreement | ||||||||||
Exhibit H | Form of Solvency Certificate | ||||||||||
Exhibit I | Form of ABL Intercreditor Agreement | ||||||||||
v
This Credit Agreement (this “Agreement”), dated as of December 13, 2022, is among MASONITE INTERNATIONAL CORPORATION, a British Columbia corporation (“Holdings”), MASONITE CORPORATION, a Delaware corporation (the “Borrower”), each lender from time to time party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent and as Collateral Agent.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower intends to directly acquire 100% of the outstanding Equity Interests of EPI Holdings, Inc. (the “Target” and such acquisition, the “Acquisition”), pursuant to that certain Securities Purchase Agreement, dated as of November 2, 2022 (together with all annexes, attachments, exhibits and schedules thereto, collectively, as amended, restated, supplemented or modified as permitted by this Agreement, the “Acquisition Agreement”), by and among the Borrower, Cyprium Investors V LP, a Delaware limited partnership, Cyprium Parallel Investors V LP, a Delaware limited partnership, 1492 Capital LLC, an Ohio limited liability company, Nationwide Defined Benefit Master Trust, an employee pension plan organized in New York, Xxxxx X. Xxxxxxx, a natural person, the Xxxx X. Xxxxxxx Irrevocable Trust u/a/d 12/31/12, the Xxxxxxxxx X. Xxxxxxx Irrevocable Trust u/a/d 12/31/12, the Xxxxx X. Xxxxxxx Irrevocable Trust u/a/d 12/31/12, Xxxxx XxxXxxxxx, a natural person, Xxxxxx Xxxxxxx, a natural person, Xxxx XxXxxxx, a natural person, and Xxxxxxxx X. Xxxxx, a natural person, the Target, and Xxxxx X. Xxxxxxx, a natural person, as the “Company Equityholders’ Representative”; and
WHEREAS, the Borrower has requested that the Lenders provide Loans to consummate the Acquisition on the Closing Date and for the other purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.
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 as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings set forth below:
“2030 Note Indenture” means the Indenture, dated as of July 26, 2021, by and among Holdings, certain subsidiaries of Holdings and Xxxxx Fargo Bank, National Association, as trustee.
“2028 Note Indenture” means the Indenture, dated as of July 25, 2019, by and among Holdings, certain subsidiaries of Holdings and Xxxxx Fargo Bank, National Association, as trustee.
“ABL Credit Agreement” means the Second Amended and Restated Credit Agreement, dated as of January 31, 2019, among Holdings, as Canadian borrower, the Borrower, as lead U.S. borrower, Premdor Xxxxxx Limited, a limited company incorporated in England and Wales, as
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U.K. borrower, each borrower from time to time party thereto, each lender from time to time party thereto and Xxxxx Fargo Bank, National Association, as administrative agent, as amended by Amendment No. 1 to Second Amended and Restated Credit Agreement, dated as of February 10, 2020, Amendment No. 2 to Second Amended and Restated Credit Agreement, dated as of September 24, 2021, Amendment No. 3 to Second Amended and Restated Credit Agreement and Facility Increase Amendment, dated as of October 28, 2022, Amendment No. 4 to Second Amended and Restated Credit Agreement, dated as of December 12, 2022, and, to the extent permitted by the Loan Documents, as otherwise amended, supplemented, amended and restated or otherwise modified from time to time.
“ABL Facility” means the credit facility evidenced by the ABL Credit Agreement.
“ABL Loan Documents” means the “Loan Documents” under and as defined in the ABL Credit Agreement.
“ABL Obligations” means the “Finance Obligations” under and as defined in the ABL Credit Agreement.
“ABL Priority Collateral” has the meaning specified in the Intercreditor Agreement.
“Accession Agreement” means a Loan Party Accession Agreement, substantially in the form of Exhibit G hereto, executed and delivered by an Additional Subsidiary Guarantor after the Effective Date.
“Acquisition” has the meaning specified in the preliminary statements.
“Acquisition Agreement” has the meaning specified in the preliminary statements.
“Additional Collateral Documents” has the meaning specified in Section 6.12(b).
“Additional Lender” has the meaning specified in Section 2.12(d).
“Additional Loans” has the meaning specified in Section 2.12(a).
“Additional Subsidiary Guarantor” means each Person that becomes a Subsidiary Guarantor after the Effective Date by execution of an Accession Agreement.
“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of calculating such rate.
“Adjusted Term SOFR Rate” means, for any Interest Period with respect to a Term Benchmark Loan, an interest rate per annum equal to (a) the Term SOFR Rate, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of calculating such rate.
“Administrative Agent” means JPM, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
2
“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 and the Lenders.
“Administrative Questionnaire” means an administrative questionnaire in a form approved by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“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 Commitments of all the Lenders.
“Agreement” has the meaning specified in the preamble.
“Anti-Corruption Laws” means the FCPA, the U.K. Xxxxxxx Xxx 0000, 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 Xxx 0000 (UK), the Money Laundering Regulations 2007 (UK) and Terrorism Xxx 0000 (UK) and (e) any other applicable anti-money laundering, anti-terrorist financing and “know-you-customer” laws.
“Applicable Adjusted Percentage” means, with respect to any Lender at any time, its percentage of the Facility computed as set forth in the definition of “Applicable Percentage” but with reference only to the Commitments or Loans (as applicable) under the Facility of all non-Defaulting Lenders at such time. Absent the existence of one or more Defaulting Lenders under the Facility at any time of determination, the Applicable Adjusted Percentage of each Lender under the Facility shall equal its Applicable Percentage. The Applicable Adjusted Percentage of
3
each Lender shall adjust automatically whenever a Lender Default occurs or ceases to exist under or with respect to the Facility.
“Applicable Percentage” means, on any date of determination, with respect to any Lender, the fraction (expressed as a percentage carried out to the ninth decimal place) the numerator of which is such Lender’s Commitment or Loan (as applicable) on such date and the denominator of which is the Aggregate Commitments or the Total Outstandings at such time. The initial Applicable Percentage of each Lender for the Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means (i) 1.25% per annum with respect to Base Rate Loans and (ii) 2.25% per annum with respect to Term Benchmark Loans.
“Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” means the collective reference to JPM and CIBC World Markets Corp., in their capacities as joint lead arrangers and joint 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 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 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.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated
4
pursuant to this Agreement as of such date and not including any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.13.
“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.
“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, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1%, (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1% and (d) 1.00% per annum; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Benchmark” means, initially, the Term SOFR Rate; provided that, if a Benchmark Transition Event, and its related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.13.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1) the Adjusted Daily Simple SOFR;
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention
5
for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,”, the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides, in consultation with the Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides, in consultation with the Borrower, is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
6
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided that, such non representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
Notwithstanding anything herein to the contrary, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
Notwithstanding anything herein to the contrary, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
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“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13 and (y) ending at the time that a Benchmark Replacement has replaced such then current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13.
“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.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“BIA” means the Bankruptcy and Insolvency Act (Canada) and any rule or regulation issued thereunder, in effect from time to time.
“Borrower” has the meaning specified in the preamble.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a borrowing consisting of Loans of the same Type and, in the case of Term Benchmark Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“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 the state where the Administrative Agent’s Office is located; provided that, and, if such day relates to any Term Benchmark Loan or RFR Loans, means any such day that is also a U.S. Government Securities Day.
“Canadian Employee” means any employee or former employee of Holdings or any Canadian Subsidiary.
“Canadian Employee Benefits Legislation” means the Pension Benefits Standards Act (British Columbia), Pension Benefits Act (Ontario), the Supplemental Pension Plans Act
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(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 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 Holdings 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 Subsidiary” means any direct or indirect Subsidiary of Holdings which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.
“Canadian Union Plan” means any registered pension plan for the benefit of Canadian Employees that is not maintained, sponsored or administered by Holdings or any of its Canadian Subsidiaries, but to which Holdings or any Canadian Subsidiary 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.
“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 January 31, 2019.
“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) 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;
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(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 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 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) 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.
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“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 any Person that is party to a Cash Management Agreement with a Loan Party or a Restricted Subsidiary of a Loan Party and that is or was a Lender or an Affiliate of a Lender on the Effective Date or at the time it enters into such Cash Management Agreement or that is designated as a “Cash Management Bank” by the Borrower to the Administrative Agent, in each case in its capacity thereto.
“Cash Management Obligations” 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.
“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 Xxxx-Xxxxx Xxxx 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) Holdings shall cease to directly own and control legally and beneficially 100% of the Equity Interests of the 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
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(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) 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 Securities of Holdings 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 Holdings 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.
“Closing Date” means the first date on which all the conditions precedent in Section 4.02 are satisfied and the initial Credit Extension occurs.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (“SOFR”) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms hereof or of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.
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“Collateral Agent” means JPM, in its capacity as collateral agent for the Secured Parties under the Loan Documents, and its successor or successors in such capacity.
“Collateral Documents” means, collectively, the Security Agreement, any Mortgages, any Intellectual Property Security Agreements, any Additional Collateral Documents, any additional pledge or security agreements that create or purport to create a Lien on the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties and any instruments of assignment, control agreements, or other amendments, supplements, reaffirmations, joinders, instruments or agreements executed pursuant to or in connection with the foregoing.
“Collateral Requirement” means that subject to Section 6.15 in all respects, (a) the Finance Obligations are secured by (i) a second priority perfected Lien in favor of the Collateral Agent on all ABL Priority Collateral and (ii) a first priority perfected Lien in favor of the Collateral Agent on (x) all Equity Interests issued by the Borrower and (y) substantially all other assets of the Loan Parties (other than Holdings) not pledged to secure the ABL Facility and not constituting Excluded Property (as defined in the Security Agreement), including Material Real Property, and (b) on the Closing Date, the Collateral securing the Finance Obligations is not less in scope than the collateral provided by the Loan Parties (other than Holdings) securing the ABL Facility.
“Commitment” means, as to each Lender, the commitment, if any, of such Lender to (i) make Loans to the Borrower on the Closing Date pursuant to Section 2.01, which commitment as of the Effective Date is set forth opposite such Lender’s name on Schedule 2.01 under the caption “Commitment” or thereafter opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement, or (ii) make Additional Loans to the Borrower in connection with a Commitment Increase pursuant to Section 2.12. As of the Effective Date, the aggregate principal amount of Commitments is $250,000,000.
“Commitment Increase” has the meaning specified in Section 2.12(a).
“Commitment Increase Effective Date” has the meaning specified in Section 2.12(f).
“Commitment Termination Date” has the meaning specified in Section 2.04.
“Committed Loan Notice” means a notice of (i) a Borrowing, (ii) a conversion of Loans from one Type to the other or (iii) a continuation of Term Benchmark 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.
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“Condemnation Award” means all proceeds of any Condemnation or transfer in lieu thereof.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDA” means, for any Measurement Period, with respect to Holdings 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;
(vii) non-recurring or extraordinary expenses, losses or charges;
(viii) unrealized gains and losses on derivative transactions;
(ix) any fees, costs, expenses or charges (other than depreciation or amortization expense) related to any sale of Equity Interests of Holdings 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, the ABL Credit Agreement and the 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;
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(x) (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 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;
(xi) the amount of net cost savings projected by the Borrower 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, (y) such cost savings are reasonably expected to result from actions that have been taken within 18 months of the event giving rise thereto and (z) 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 (calculated after giving effect to this clause (xi)) for any four consecutive quarter period;
(xii) 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 Borrower or net cash proceeds of the issuance of common stock or other common Equity Interests of the Borrower (other than Disqualified Stock);
(xiii) the amount of any minority interest expense deducted in such period in calculating Consolidated Net Income; and
(xiv) 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
(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, 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 Holdings or any of its Restricted Subsidiaries shall have made a Disposition or an acquisition, Consolidated EBITDA for such Measurement Period shall be calculated after giving effect thereto on a Pro Forma Basis.
“Consolidated Interest Expense” means at any date the total interest expense of Holdings and its Consolidated Restricted Subsidiaries for the most recently completed Measurement
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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 Holdings 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 Holdings 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 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 Holdings, (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 Holdings 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 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; provided that Magna Foremost SDN bhd shall be deemed to be a Consolidated Restricted Subsidiary of Holdings for so long as the accounts of such Person are
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consolidated with those of Holdings in its consolidated financial statements in accordance with GAAP.
“Consolidated Total Assets” means, as of any date of determination, for Holdings and its Consolidated Restricted Subsidiaries, total assets as determined in accordance with GAAP.
“Consolidated Total US Assets” means, as of any date of determination, Consolidated Total Assets (excluding the total assets of Holdings and any Restricted Subsidiary of Holdings that is not a Domestic Subsidiary).
“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.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding Business Day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning assigned to it in Section 10.23.
“Credit Extension” means a Borrowing.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal SOFR for the day that is five (5) U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the CME Term SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
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“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.
“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.
“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 an interest rate equal to (A) the Base Rate plus (B) the Applicable Rate, if any, applicable to Base Rate Loans plus (C) 2.00% per annum; provided, however, that with respect to a Term Benchmark Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Term Benchmark Loan plus 2.00% per annum.
“Defaulted Amount” has the meaning specified in Section 2.10(b)(iii).
“Defaulting Lender” means a Lender during the period and only for so long as a Lender Default is in effect with respect to such 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.
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“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.
“Designated Noncash Consideration” means the fair market value of noncash consideration received by Holdings or a Restricted Subsidiary in connection with a Disposition as determined by Holdings 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 Holdings (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.
“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 sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“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.
“Dollars” and “$” means lawful money of the United States.
“Domestic Subsidiary” means, with respect to any Person, each Restricted 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.
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“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date on which all the conditions precedent in Section 4.01 are satisfied.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“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)).
“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
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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.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any Person (whether or not incorporated) that is 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).
“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) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iv) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (v) 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; (vi) 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; (vii) 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 (viii) 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.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning specified in Section 8.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Subsidiaries” means, collectively, (a) Foreign Subsidiaries, (b) Immaterial Subsidiaries, so long as such Subsidiary is not liable in respect of any Indebtedness of Holdings or any of its Restricted Subsidiaries, and (c) Unrestricted Subsidiaries. In no event shall any Domestic Subsidiary of Holdings that is an obligor under the ABL Facility constitute an Excluded Subsidiary.
“Excluded Swap Obligations” 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
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or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure 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, Senior Credit Obligations, Swap Obligations and Finance Obligations shall not include Excluded Swap Obligations.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to the Administrative Agent, any Lender 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, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed as a result of such recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13), any United States or Canadian withholding Tax that is required to be imposed on amounts payable to or for the account of such Lender pursuant to Laws in force at the time such Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such 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), (c) Taxes attributable to such recipient’s failure to comply with Section 3.01(e), and (d) any withholding Tax imposed under FATCA.
“Existing Indebtedness” has the meaning specified in Section 7.02(iv).
“Facility” means the Commitments from time to time and the Credit Extensions made thereunder.
“Facility Increase Amendment” has the meaning specified in Section 2.12(e).
“Factoring Arrangement” means with respect to Receivables owing from (x) either Home Depot, Inc. or Xxxx’x Companies, Inc. or any of their respective subsidiaries or (y) any other Person identified by Holdings 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 2.10(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
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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 Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding business day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of the Loan Documents.
“Fee Letter” means the Fee Letter, dated as of October 16, 2022, between Holdings and JPM.
“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.
“Flood Hazard Property” means any Real Property subject to a Mortgage and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
“Flood Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 and the Biggert – Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time.
“Floor” means with respect to each of the Adjusted Term SOFR Rate and the Adjusted Daily Simple SOFR, 0.0%.
“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 Xxxxx’x 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 the Borrower.
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“Foreign Lender” means, with respect to the Borrower, any 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 the Borrower is a resident for tax purposes. 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 Restricted 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.
“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).
“Governmental Authority” means the government of the United States, 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 Loan Parties or their respective Restricted Subsidiaries (regardless of whether or not consolidated with Holdings 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
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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)).
“Guarantors” means, collectively, the Loan Parties (other than the Borrower) and each other Subsidiary of Holdings that shall be required to execute and deliver an Accession Agreement or other guaranty or guaranty supplement pursuant to Section 6.12.
“Guaranty” means the guaranty made by the Guarantors in favor of the Secured Parties, substantially in the form of Exhibit E, together with any Accession Agreement and each other guaranty and guaranty supplement delivered 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, on the Effective Date or at the time it enters into a Swap Contract permitted under Article VI or VII, is a Lender or an Affiliate of a 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.
“Historical Financial Statements” means (i) audited consolidated financial statements of Holdings and its Restricted Subsidiaries for the two (2) most recent fiscal years ended at least 90 days prior to the Effective Date and (ii) unaudited interim consolidated financial statements of Holdings and its Restricted Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to the foregoing clause (i) and ended at least 45 days prior to the Effective Date.
“Holdings” has the meaning specified in the preamble.
“IFRS” has the meaning specified in Section 1.03(b).
“Immaterial Subsidiary” means, on any date of determination, means any Domestic Subsidiary of Holdings that is listed on Schedule 1.01A and each other Domestic Subsidiary of Holdings designated in writing by the Borrower 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
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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 Lender which is then a Defaulting Lender or (ii) a Lender (A) which the Administrative Agent 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.
“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:
(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;
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(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 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 (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other 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.
“Intellectual Property Security Agreement” has the meaning specified in the Security Agreement.
“Intercompany Subordination Agreement” means, with respect to any Indebtedness for borrowed money owing by any Loan Party to Holdings or any Subsidiary of Holdings 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 Holdings or such Subsidiary.
“Intercreditor Agreement” means the Intercreditor Agreement, dated as of December 13, 2022, by and between Xxxxx Fargo Bank, National Association, in its capacity as
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administrative agent under the ABL Credit Agreement, and the Administrative Agent, as amended, supplemented, amended and restated or otherwise modified from time to time.
“Interest Payment Date” means, (i) as to any Term Benchmark Loan, the first day of the calendar month immediately following each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Term Benchmark 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, the first day of the calendar month immediately following each calendar month in respect of which the interest on such Base Rate Loan is paid on such Interest Payment Date, and the Maturity Date.
“Interest Period” means, as to each Term Benchmark Loan, the period commencing on the date such Term Benchmark Loan is disbursed or converted to or continued as a Term Benchmark Loan and ending on the date one, three or six months thereafter, as selected by the 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 immediately 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;
(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.
“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 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
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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 Holdings and its Subsidiaries, as applicable, shall have received a novation) in connection with the sale of such Investment.
“IP Rights” has the meaning specified in the Security Agreement.
“Joint Venture” means (i) any Person which would constitute an “equity method investee” of Holdings or any of its Restricted Subsidiaries, (ii) any other Person designated by the Borrower 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 are directly owned by Holdings or any of its Restricted Subsidiaries and (iii) any Person in whom Holdings or any of its Restricted Subsidiaries beneficially owns any Equity Interest that is not a Restricted Subsidiary.
“JPM” means JPMorgan Chase Bank, N.A. and its successors.
“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.
“Lender” means each financial institution listed on Schedule 2.01 as a “Lender”, as well as any Person that becomes a “Lender” hereunder pursuant to Section 10.06 or 2.12.
“Lender Default” means, with respect to any Lender as reasonably determined by the Administrative Agent, that such Lender (i) has failed to fund any portion of the Loans required to be funded by it hereunder within two Business Days of the date when due (unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied), (ii) has notified the Borrower, the Administrative Agent or any 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 (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (iii) has failed, within three Business Days (or prior to the Closing Date, if earlier) after written request by the Administrative Agent, to confirm that it will comply with the terms
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of this Agreement relating to its obligations to fund prospective Loans; provided that a Lender Default with respect to such 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 Lender any other amount required to be paid by it hereunder within three Business Days of the date when due or prior to the Closing 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 Lender solely by virtue of the ownership or acquisition of an Equity Interest in such Lender or a parent company thereof by a Governmental Authority or an instrumentality thereof, unless such ownership or acquisition results in or provides such 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 Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender.
“Lending Office” means with respect to any Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan in such Lender’s Administrative Questionnaire or in any applicable Assignment and Assumption pursuant to which such Lender became a Lender hereunder or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.
“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, xxxxxx 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).
“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 Loans or the Notes) of such Person to declare a default on such
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other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity.
“Loan Documents” means, collectively, this Agreement, the Notes, the Guaranty, the Collateral Documents, each Perfection Certificate, the Intercreditor Agreement, each Accession Agreement, the Fee Letter, each Intercompany Subordination Agreement and each other document designated as a “Loan Document” for purposes of the Facility or this Agreement.
“Loan Party” means, collectively, the Borrower, Holdings and each other Guarantor; provided that no Unrestricted Subsidiary shall constitute a Loan Party.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement, comprising the Loans made on the Closing Date and any Additional Loans made pursuant to Section 2.12.
“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 Holdings 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 Lenders under any Loan Document that is materially adverse to the 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.
“Material Debt” has the meaning specified in Section 8.01(e).
“Material Real Property” means each of the parcels of fee-owned Real Property identified on Part B of Schedule 5.08(c).
“Maturity Date” means the earlier of (x) the fifth anniversary of the Closing Date and (y) the Springing Maturity Date; provided, however, that if such date is not a Business Day, the Maturity Date shall be the immediately 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 Holdings ending on, or most recently preceding, such day for which financial statements have been delivered.
“Moody’s” means Xxxxx’x Investors Service, Inc., a Delaware corporation, and its successors or, absent any such successor, such nationally recognized statistical rating organization as the Borrower and the Administrative Agent may select.
“Mortgage” means each mortgage, deed of trust or other agreement in form and substance satisfactory to the Administrative Agent and the Borrower which conveys or evidences
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a Lien in favor of the Collateral Agent, for the benefit of Secured Parties, on any Material Real Property, including any amendment, restatement, modification or supplement thereto.
“Mortgaged Properties” means each Material Real Property and improvements thereto with respect to which a Mortgage is required to be granted pursuant to Sections 6.12 and 6.15. As of the Effective Date, each Mortgaged Property is set forth on Part B of Schedule 5.08(c).
“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 pursuant to which any Loan Party otherwise could reasonably be expected to have any liability (including by reason of its relationship to any ERISA Affiliate) but does not include any Canadian Union Plans.
“Net Cash Proceeds” means, with respect to the Disposition of any asset by any Loan Party or its Restricted Subsidiaries, 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 or, with respect to the ABL Priority Collateral, a second 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 or such Restricted Subsidiary in connection with such Disposition, Casualty or Condemnation, (C) taxes paid or reasonably estimated to be payable by such Loan Party or such Restricted Subsidiary 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 assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by such Loan Party or such Restricted Subsidiary 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 or such Restricted Subsidiary 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
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such reserve not reversed within 365 days after such Disposition, Casualty or Condemnation, the amount of such reserve.
“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B.
“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 2028 Note Indenture and the 2030 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).
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (i) the Federal Funds Effective Rate in effect on such day and (ii) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a business day, for the immediately preceding business day); provided that if none of such rates are published for any day that is a business day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
“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.
“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; and (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
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formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“OSC” means the Ontario Securities Commission.
“Other Connection Taxes” means, with respect to the Administrative Agent or any Lender, Taxes imposed as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction imposing such Tax (other than connections arising from the Administrative Agent or such Xxxxxx having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible recording, filing or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment pursuant to a request by the Borrower under Section 10.13).
“Outstanding Amount” means with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date.
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding business day by the NYFRB as an overnight bank funding rate.
“Participant” has the meaning specified in Section 10.06(d).
“Patriot Act” has the meaning specified in Section 10.18.
“Payment Date” means the earlier of (x) the Closing Date and (y) the Commitment Termination Date.
“PBGC” means the Pension Benefit Guarantee Corporation.
“Pension Event” means (i) a complete or partial withdrawal or winding up by Holdings 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 Holdings 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
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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 Holdings 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, that is subject to Title IV of ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or 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 Xxx 0000.
“Perfection Certificate” means a certificate, substantially in the form of Exhibit F-2, 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 Holdings.
“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 the Borrower or any of its Restricted Subsidiaries which (i) is engaged in a line of business related, ancillary or complementary to those engaged in by Holdings and its Restricted Subsidiaries and (ii) is formed or organized in a manner that limits the exposure of Holdings and its Restricted Subsidiaries for the liabilities thereof to (A) the Investments of Holdings and its Restricted Subsidiaries therein permitted under Section 7.03(xxii) and (B) any Indebtedness of any Permitted Joint Venture or any Guarantee by Holdings or any of its Restricted 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 Payment” has the meaning specified in Section 7.03(iii)(D).
“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
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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 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 Lenders than the terms of any agreement or instrument governing the Refinanced Indebtedness, as determined by the Board of Directors of Holdings, (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 connection with such modification, refinancing, refunding, renewal or extension and (vi) at the time of the incurrence of such Refinancing Indebtedness (other than with respect to the ABL Facility), 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.
“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Platform” ‘has the meaning specified in Section 6.02.
“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.
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“Prepayment Notice” means a notice of prepayment of Loans pursuant to Section 2.03(a), which shall be substantially in the form of Exhibit A-2.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Pro Forma Basis” mean, for purposes of calculating compliance with the financial covenant set forth in Section 7.11 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 Permitted Acquisition and which are consistent with Regulation S-X promulgated under the Securities Act of 1933.
“Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and including all regulations thereunder.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 6.02.
“Purchase Money Indebtedness” means Indebtedness of Holdings or any of its Restricted 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 Holdings or such Restricted Subsidiary; provided that such Indebtedness is incurred within 180 days after such property is acquired or, in the case of improvements, constructed.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 10.23.
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“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 Agreement.
“Register” has the meaning specified in Section 10.06(c).
“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.
“Relevant Governmental Body” means, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“Relevant Rate” means (i) with respect to any Term Benchmark Borrowing, the Adjusted Term SOFR Rate or (ii) with respect to any RFR Borrowing (solely to the extent applicable following a Benchmark Replacement or otherwise pursuant to Section 2.13), the Adjusted Daily Simple SOFR, as applicable.
“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.
“Required Lenders” means, as of any date of determination, Lenders holding more than 50% of (i) the Aggregate Commitments or (ii) if the Commitments have expired or been terminated or reduced to zero, the Total Outstandings; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required 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.
“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.
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“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”.
“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing.
“RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple SOFR.
“S&P” means Standard & Poor’s Financial Services LLC, a division of McGraw Hill, Inc., a New York corporation, and any successor thereto.
“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 Holdings or any of its Restricted Subsidiaries of any property, whether owned by Holdings or any of its Restricted Subsidiaries as of the Effective Date or later acquired, which has been or is to be sold or transferred by Holdings or any of its Restricted 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 Country” means a country or territory that is the subject of Sanctions (at the date of this Agreement, the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, Crimea, Kherson and Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea and Syria), including a target of any comprehensive sanctions program administered and enforced by OFAC or any other Governmental Authority.
“Sanctioned Person” means, at any time (a) any Person whose name is listed on any Sanctions List, (b) a Person or legal entity that is a target of Sanctions, (c) any Person located, operating, organized or resident in a Sanctioned Country, or (d) any Person directly or indirectly 50% or more 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, 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 OFAC, the U.S. Department of State or the U.S. Department of Commerce, (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 His 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 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
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Nationals List” 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.
“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 Restricted 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 Restricted Subsidiary of a Loan Party and any Hedge Bank, provided the Administrative Agent has received a written notice executed by the Borrower (on behalf of such Loan Party or Restricted 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) Indebtedness of Holdings and its Consolidated Restricted Subsidiaries which is secured by a Lien on any assets of Holdings and its Consolidated Restricted Subsidiaries as of the last day of such Measurement Period to (ii) Consolidated EBITDA for such Measurement Period.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time, and the other Persons to whom the Finance Obligations are owing and which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.
“Security Agreement” means the security agreement, substantially in the form of Exhibit F-1 hereto, among Holdings, the Borrower, the Guarantors and the Collateral Agent, as the same may be amended, modified or supplemented from time to time.
“Senior Credit Obligations” means, with respect to each Loan Party, without duplication:
(i) in the case of the Borrower, 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 the Borrower, whether or not allowed or allowable as a claim in any such proceeding) on any Loan or any Note issued pursuant to this Agreement or any other Loan Document;
(ii) all (x) reasonable, documented, out-of-pocket fees and expenses, (y) indemnification obligations and (z) 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;
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(iii) all reasonable, documented, out-of-pocket expenses of 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 Borrower 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 Guaranty or any other Loan Document;
together in each case with all renewals, modifications, consolidations or extensions thereof.
“Senior Credit Party” means each Lender, the Administrative Agent, each co-agent or sub-agent appointed by the Administrative Agent from time to time, the Collateral Agent and each Indemnitee and their respective successors and assigns, and “Senior Credit Parties” means any two or more of them, collectively.
“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.
“SOFR Administrator’s Website” means the NYFRB’s Website, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the CME Term SOFR Administrator from time to time.
“SOFR Rate Day” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.
“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, and (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. The amount of contingent liabilities at any time shall be computed
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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 Real Property” means any fee-owned Real Property of Holdings or any of its Restricted Subsidiaries located within the United States.
“Specified Transaction” means any 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.
“Springing Maturity Date” means the termination date or maturity date with respect to the ABL Credit Agreement and/or the ABL Facility (or any facility which refinances or replaces the ABL Credit Agreement and/or the ABL Facility, in whole or in part), to the extent occurring prior to the fifth anniversary of the Closing Date. For the avoidance of doubt, the effective date of any refinancing or replacement of the ABL Credit Agreement and/or the ABL Facility shall not deemed to be the Springing 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 Holdings.
“Subsidiary Guarantor” means each Subsidiary of Holdings on the Effective Date that is a party to a Guaranty and each Subsidiary of Holdings that becomes a party to any Guaranty after the 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.
“Supported QFC” has the meaning assigned to it in Section 10.23.
“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 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
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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.
“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).
“Target” has the meaning specified in the preliminary statements.
“Target Loan Parties” has the meaning specified in Section 4.02(i).
“Tax Structuring” means any reorganizations and other transactions entered into among Holdings and/or its Restricted Subsidiaries for bona fide tax planning purposes (as certified in writing by the Borrower to the Administrative Agent) entered into after the Effective Date so long as such reorganizations and other transactions do not impair the value of the Collateral, when taken as a whole, or the value of the Guaranty, taken as a whole, in any material respect and are otherwise not adverse to the Lenders in any material respect.
“Taxes” or “Tax” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate.
“Term SOFR Rate” means, with respect to any Term Benchmark Loan denominated in Dollars for any Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time, with respect to any Term Benchmark Loan for any Interest Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR.
“Threshold Amount” means $75,000,000.
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“Total Leverage Ratio” means, for any Measurement Period, the ratio of (i) Indebtedness of Holdings and its Consolidated Restricted Subsidiaries to (ii) Consolidated EBITDA for such Measurement Period.
“Total Outstandings” means the then aggregate Outstanding Amount of all Loans.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or Term Benchmark Loan.
“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.
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“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.
“Unrestricted Subsidiary” shall mean a Subsidiary of Holdings listed on Schedule 1.01B hereto and a Subsidiary of the Borrower designated in writing by the Borrower to Administrative Agent as an Unrestricted Subsidiary after the date hereof; provided that:
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(a) the capitalization of, and/or other investments in, all Unrestricted Subsidiaries by Holdings and/or any of its Restricted Subsidiaries shall not exceed $100,000,000 in the aggregate;
(b) no Event of Default shall exist or have occurred and be continuing as of the date of the initial designation or, 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, Holdings or any Subsidiary of Holdings (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 any Loan Party or any Restricted Subsidiary or any of their respective assets; and
(e) no Unrestricted Subsidiary or any Subsidiary thereof shall have any interest in (i) any IP Rights that are material to any Group Company (and neither Holdings, the Borrower or any Restricted Subsidiary may assign, transfer, license (on an exclusive basis) or sub-license (on an exclusive basis), any IP Rights that are material to any Group Company to any Unrestricted Subsidiary or any Subsidiary thereof) or (ii) any Material Real Property.
The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence by the applicable Group Company at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by Holdings (or its applicable Restricted Subsidiary) therein at the date of designation in an amount equal to the portion of the fair market value of the net assets of such Subsidiary attributable to Holdings’ (or its applicable Restricted Subsidiary’s) equity interest therein as estimated by Holdings in good faith (and such designation shall only be permitted to the extent such Investment is permitted under Section 7.03). If any Subsidiary of Holdings is an Unrestricted Subsidiary, such Unrestricted Subsidiary shall not constitute a Loan Party. In no event shall the Borrower constitute an Unrestricted Subsidiary.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Special Resolution Regime” has the meaning assigned to it in Section 10.23.
“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
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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.
“Wholly Owned Subsidiary” means, with respect to any Person at any date, any Restricted 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. Unless otherwise specifically indicated, the term Wholly Owned Subsidiary shall refer to the Wholly Owned Subsidiaries of Holdings.
“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:
(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.”
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(c) 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.
(d) References to a “Person and its Subsidiaries” or to a “Person or any Subsidiary” (or words of similar import) means to Holdings and its Subsidiaries, unless otherwise specified.
(e) 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.
(f) Notwithstanding anything to the contrary in this Agreement and the other Loan Documents, Senior Credit Obligations, Swap Obligations and Finance Obligations shall not include Excluded Swap Obligations.
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 Historical Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. Upon the adoption by Holdings of International Financial Reporting Standards (“IFRS”) or if at any time after the Effective Date 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 or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower 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 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 continue to be computed in accordance with GAAP as in effect on the Effective Date and (ii) the Borrower shall provide to the Administrative Agent and the 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) Financial Terms. 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 Holdings and its Subsidiaries. All defined financial terms (and all other definitions used to determine such terms) shall be calculated (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any indebtedness or other liabilities of Holdings, the Borrower or any subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of indebtedness in respect of
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convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such indebtedness in a reduced or bifurcated manner as described therein, and such indebtedness shall at all times be valued at the full stated principal amount thereof.
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).
Section 1.06 Interest Rates; Benchmark Notification. The interest rate on a Loan denominated in dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.13(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
Section 1.07 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
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ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01 The Loans. Subject to the terms and conditions set forth herein, (a) each Lender severally agrees to make a Loan in Dollars to the Borrower on the Closing Date in an amount not to exceed such Xxxxxx’s Commitment as of the Closing Date, and (b) the Commitments shall be fully drawn in a single Borrowing on the Closing Date. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Loans may be Base Rate Loans or Term Benchmark Loans, as further provided herein.
Section 2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Term Benchmark Loans shall be made upon the Borrower’s irrevocable written notice to the Administrative Agent, which shall be given by a Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term Benchmark Loans or of any permitted conversion of Term Benchmark Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each Borrowing of, conversion to or continuation of Term Benchmark Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Term Benchmark Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the aggregate principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term Benchmark Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Term Benchmark 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 Lender of the amount of its Applicable Percentage and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans, described in Section 2.02(a). Each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 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 Borrower in like funds as received by the
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Administrative Agent by wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Term Benchmark Loan may be continued or converted only on the last day of an Interest Period for such Term Benchmark Loan. Upon the occurrence and during the continuance of an Event of Default, no Loans may be requested as, converted to or continued as Term Benchmark Loans without the consent of the Required Lenders. Notwithstanding anything herein to the contrary, the Borrower shall not be entitled to request, or to elect to convert or continue, any Term Benchmark Loan if the Interest Period requested with respect thereto would end after the Maturity Date.
(d) Upon the request of the Borrower, the Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Term Benchmark Loans. At any time that Base Rate Loans, are outstanding, upon the request of the Borrower, the Administrative Agent shall notify the Borrower and the Lenders of the Administrative Agent’s base rate or prime rate then in effect.
Section 2.03 Prepayments.
(a) Optional. Subject to the last sentence of this Section 2.03(a), the Borrower may at any time or from time to time voluntarily prepay the Loans in whole or in part without premium or penalty (except as provided in Section 3.05), upon prior written notice (in the form of a Prepayment Notice appropriately completed and signed by a Responsible Officer of the Borrower) to the Administrative Agent, which notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Term Benchmark Loans and (2) on the date of prepayment of Base Rate Loans. Any prepayment of Term Benchmark Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof, and any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Term Benchmark Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage). The payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Term Benchmark Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of Loans pursuant to this Section 2.03(a) shall be applied to the principal repayment installments thereof as directed by the Borrower in writing (and in the absence of any direction, in direct order of maturity, to the remaining quarterly principal installments thereof). Each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(b) Mandatory.
(i) If Holdings, the Borrower or any of their respective Restricted Subsidiaries Disposes of any property or any Casualty or Condemnation occurs with
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respect to any of their property (other than any Disposition of, or Casualty or Condemnation with respect to, any ABL Priority Collateral) pursuant to Section 7.05(xii), (xvi), (xvii), (xix) or (xxi) which results in the realization by such Person of aggregate Net Cash Proceeds in excess of (x) $10,000,000 for a single event or series of related events or (y) $25,000,000 in any fiscal year, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clause (iii) below); provided, however, that, at the election of the Borrower (as notified by the Borrower in writing to the Administrative Agent upon such Disposition or Casualty or Condemnation), and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, the Borrower or such Restricted Subsidiary, as applicable, may reinvest all or any portion of such Net Cash Proceeds in operating assets useful in their business so long as within 365 days after the receipt of such Net Cash Proceeds, such reinvestment shall have been consummated or Holdings, the Borrower or such Restricted Subsidiary, as applicable, shall have entered into a binding agreement for such reinvestment (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that an amount equal to any Net Cash Proceeds not so reinvested at the end of such 365-day period (or, if subject to such binding agreement at the end of such 365-day period, not so reinvested within 180 days after such 365-day period) shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.03(b)(i).
(ii) If the Borrower or any of its Restricted Subsidiaries issues or incurs any Indebtedness (other than Indebtedness expressly permitted to be incurred pursuant to Section 7.02 (except to the extent constituting a refinancing of any Finance Obligations) and excluding proceeds of the Indebtedness under the ABL Credit Agreement), then on the date of such issuance or incurrence, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds simultaneously with (and in any event not later than the third Business Day following) the receipt thereof by such Person.
(iii) Prepayments of the Loans made pursuant to this Section 2.03(b) shall be applied to the principal repayment installments thereof as directed by the Borrower in writing (and in the absence of any direction, in direct order of maturity, to the remaining quarterly principal installments thereof). Each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(iv) Any Lender may elect, by notice to the Administrative Agent by telephone (provided that any telephone notice must be confirmed immediately by delivery to the Administrative Agent of a notice by hand delivery or by electronic transmission) at least one (1) Business Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Loan pursuant to this Section 2.03(b), in which case the aggregate amount of the prepayment that would have been applied to prepay the Loans but was so declined may be retained by the Borrower.
Section 2.04 Termination of Commitments. The Commitments shall automatically terminate and be reduced to zero on the earliest of (a) Xxxxx 00, 0000, (x) the Closing Date, after
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giving effect to the initial Credit Extension, (c) the date on which the Acquisition Agreement is terminated (or written confirmation from the Borrower or public announcement thereof) and (d) the date on which the Acquisition is consummated without the Borrowing of the Loans hereunder (such earliest date, the “Commitment Termination Date”).
Section 2.05 Repayment of Loans. The Borrower shall repay to the Administrative Agent for the ratable account of each Lender (i) for each fiscal year and in equal quarterly installments, 15.0% of the aggregate principal amount of Loans funded on the Closing Date (and each such installment shall be due and payable on the 15th calendar day of each March, June, September and December, commencing with the first such day to occur during the first full fiscal quarter after the Closing Date), and (ii) on the Maturity Date, the aggregate principal amount of all Loans outstanding on such date; provided that payments required by clause (i) above shall be reduced as a result of the application of prepayments in accordance with Section 2.03.
Section 2.06 Interest.
(a) Stated Interest. Subject to the provisions of Section 2.06(b): (i) each Term Benchmark Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted Term SOFR Rate for such Interest Period plus the Applicable Rate for Term Benchmark Loans and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans.
(b) Default Interest.
(i) If any amount of principal of any Loan is not paid when due, whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by any Loan Party under any Loan Document is not paid when due (other than amounts owing to Defaulting Lenders for so long as it is a Defaulting Lender), whether at stated maturity, by acceleration or otherwise, then at the election of Administrative Agent or upon the request of the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Payments of Interest. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
Section 2.07 Fees.
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(a) Ticking Fee. The Borrower shall pay (or cause to be paid) to the Administrative Agent, for the ratable account of the Lenders, a ticking fee equal to the product of 0.25% multiplied by the actual daily amount of the undrawn Commitments, which fee shall accrue from January 3, 2023 through the Payment Date. Such fee (if any) shall be due and payable on the Payment Date, whether or not the Closing Date has occurred.
(b) Other Fees. The Borrower shall pay (or cause to be paid) the fees in the amounts, to the Persons and at the times specified in the Fee Letter.
Section 2.08 Computation of Interest and Fees. All computations of interest for Base Rate Loans and Base Rate Loans when the Base Rate is determined by the Administrative Agent, as applicable, “prime rate” or “base rate”, shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of interest and fees shall, unless otherwise provided, be made on the basis of a 360-day year and actual days elapsed (which results in more interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.09 Evidence of Debt. The Commitments and Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Xxxxxx and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Commitments and Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Senior Credit Obligations. In the event of any conflict between the accounts and records maintained by any Xxxxxx and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Xxxxxx made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Xxxxxx’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
Section 2.10 Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided for herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Adjusted Percentage (or other applicable share as provided herein) of such payment in like funds in accordance with this Agreement. All payments received by the Administrative Agent after 2:00 p.m. shall be
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deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) Funding and Payments; Presumptions.
(i) Funding by Xxxxxxx; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Term Benchmark Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 p.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Xxxxxx has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent within one Business Day of demand therefor such corresponding amount in immediately available funds with accrued interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Failed Loans. If any Lender shall fail to make any Loan (a “Failed Loan”) which such Lender is otherwise obligated hereunder to make to the Borrower on the date of Borrowing thereof, and the Administrative Agent shall not have received notice from the Borrower or such Lender that any condition precedent to the making of the Failed Loan has not been satisfied, then, until such Lender shall have made or be deemed to have made (pursuant to the last sentence of this subsection (b)(ii)) the Failed Loan in full or the Administrative Agent shall have received notice from the Borrower or such Lender that any condition precedent to the making of the Failed Loan was not satisfied at the time the Failed Loan was to have been made, whenever the Administrative Agent shall receive any amount from or for the account of the Borrower on account of any Borrowing of the Loans, (i) the amount so received will, upon receipt
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by the Administrative Agent, be distributed in the following order of priority: First, to the Lenders on account of the Loans made by them as part of the Borrowing that would have included the Failed Loan had the relevant Lender not failed to fund its Failed Loan, ratably among such Lenders in accordance with the respective Loans made by them as part of such Borrowing, Second, to all other Loans made by the Lenders other than the Defaulting Lenders, ratably among such Lenders in accordance with the respective Loans made by them, and Third, to the Loans made by the Lenders who are Defaulting Lenders.
(iii) Defaulted Amounts. If any Lender shall fail to make any payment (the “Defaulted Amount”) to any Agent, or any other Lender, whenever the Administrative Agent shall receive any amount from or for the account of the Borrower for the account of such Lender (other than as described in clause (ii) of this Section 2.10(b)), the amount so received will, upon receipt by the Administrative Agent, be distributed in the following order of priority: First, to the Agents for any Defaulted Amounts then owing to them, in their capacities as such, ratably in accordance with such respective Defaulted Amounts then owing to the Agents, and Second, to any other Lenders for any Defaulted Amounts then owing to such other Lenders, ratably in accordance with such respective Defaulted Amounts then owing to such other Lenders. Any portion of such amount paid by the Borrower for the account of such Defaulting Lender remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this clause (iii), shall be applied or held by the Administrative Agent as specified in clause (iv) of this Section 2.10(b).
(iv) Distribution of Certain Amounts. If any Lender shall be an Impacted Lender that does not at any time owe a Failed Loan or a Defaulted Amount, whenever the Administrative Agent shall receive any amount from or for the account of the Borrower for the account of such Impacted Lender, the amount so received will, upon receipt by the Administrative Agent, be held without interest by the Administrative Agent and applied from time to time to the extent necessary to make any Loans required to be made by such Impacted Lender and to pay any amount payable by such Impacted Lender hereunder and under the other Loan Documents to any Agent or any other Lender, as and when such Loans or amounts are required to be made or paid. If the amount so held shall at any time be insufficient to make and pay all such Loans and amounts required to be made or paid at such time, the Administrative Agent shall apply such held funds in the following order of priority: First, to the Agents for any amounts then due and payable by such Impacted Lender to them hereunder, in their capacities as such, by such Impacted Lender, ratably in accordance with such respective amounts then due and payable to such Persons, and Second, to any other Lenders for any amount then due and payable by such Impacted Lender to such other Lenders hereunder, ratably in accordance with such respective amounts then due and payable to such other Lenders. In the event that any Impacted Lender ceases to be an Impacted Lender, any funds held by the Administrative Agent in escrow at such time with respect to such Lender shall be distributed by the Administrative Agent to such Lender and applied by such Lender to the Senior Credit Obligations owing to such Lender at such time under this Agreement and the other Loan Documents ratably in accordance with the respective amounts of such Senior Credit Obligations outstanding at such time.
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(v) Payments by the Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Administrative Agent determines (which determination shall be conclusive absent manifest error) that the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Xxxxxx as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of the principal amount of any Loan then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
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Section 2.11 Sharing of Payments by Xxxxxxx. Except as otherwise provided herein, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (i) Senior Credit Obligations due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the amount of such Senior Credit Obligations due and payable to such Lender at such time to (y) the aggregate amount of the Senior Credit Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Senior Credit Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (ii) Senior Credit Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the amount of such Senior Credit Obligations owing (but not due and payable) to such Lender at such time to (y) the aggregate amount of the Senior Credit Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payment on account of the Senior Credit Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Senior Credit Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders; provided, further, that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
Section 2.12 Increase in Facility.
(a) Requests for Increase. Provided there exists no Default or Event of Default, upon written notice to the Administrative Agent (which shall promptly notify each Lender), the Borrower may from time to time after the Closing Date, request an increase (each a “Commitment Increase”) in the Facility (which increase may take the form of a “delayed draw” facility) by an aggregate principal amount (for all such requests) not exceeding $100,000,000; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of
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$5,000,000 and (ii) the Borrower may make a maximum of five requests for a Commitment Increase. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). All Loans made pursuant to any Commitment Increase are herein referred to herein as “Additional Loans”.
(b) Ranking and Other Provisions. The Additional Loans (i) shall rank pari passu in right of payment and in respect of Lien priority as to the Collateral with the outstanding Loans, (ii) shall have the same Maturity Date as the outstanding Loans and (iii) shall be on the same terms (other than with respect to upfront fees, original issue discount or similar fees), and otherwise treated the same, as the outstanding Loans.
(c) Lender Elections to Increase. Each existing Lender shall notify the Administrative Agent within such time period whether or not it agrees to participate in the Commitment Increase and make Additional Loans and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of the requested Commitment Increase. Any Lender not responding within such time period shall be deemed to have declined to participate in the Commitment Increase and make Additional Loans. No Lender shall have any obligation to participate in any Commitment Increase.
(d) Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, and subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed), the Borrower may also invite additional Eligible Assignees to become Lenders (each an “Additional Lender”) pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel. On each Commitment Increase Effective Date, each Additional Lender providing a Commitment Increase shall become a “Lender” for all purposes of this Agreement and the other Loan Documents.
(e) Facility Increase Amendment. Commitments in respect of any Additional Loans shall become Commitments under this Agreement pursuant to an amendment (a “Facility Increase Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Loan Parties, each existing Lender agreeing to provide such Commitment (if any), each Additional Lender (if any) and the Administrative Agent. A Facility Increase Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be reasonably necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.12.
(f) Effective Date and Allocations. If the Facility is increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Commitment Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Commitment Increase Effective Date.
(g) Conditions to Effectiveness of Increase. As a condition precedent to any Commitment Increase: (i) the Borrower shall deliver to the Administrative Agent a certificate of
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each Loan Party dated as of the Commitment Increase Effective Date signed by a Responsible Officer of such Loan Party: (A) certifying and attaching copies of the resolutions adopted by such Loan Party approving or consenting to such Commitment Increase; and (B) in the case of the Borrower, certifying that, before and after giving effect to such increase and the borrowings thereunder: (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or in all respects if qualified by “material” or “Material Adverse Effect”) on and as of the Commitment Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or in all respects if qualified by “material” or “Material Adverse Effect”) as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01; (2) no Default or Event of Default then exists or would result from the Commitment Increase or the Additional Loans; (3) the conditions precedent set forth in this Section 2.12(g) (and any other conditions precedent as the Administrative Agent or Lenders participating in the Commitment Increase may require) shall have been satisfied both before and after giving effect to such Commitment Increase and the Additional Loans provided thereby; (4) the Maturity Date of any Additional Loans shall be coincident with the existing Maturity Date for the Loans; and (5) Holdings shall be in compliance on a Pro Forma Basis with the financial covenant in Section 7.11 before and after giving effect to the Commitment Increase (assuming the Additional Loans are fully drawn) and (ii) (A) the applicable existing Lenders and/or Additional Lenders commit to be Lenders and to fund any such Commitment Increase in minimum amounts to be determined; (B) all fees and expenses owing in respect of such increase to the Administrative Agent or the Lenders shall have been paid or will be paid concurrently with such Commitment Increase; and (C) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (x) customary legal opinions, board resolutions and officers’ certificates (including solvency certificates) and (y) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Lenders and/or Additional Lenders are provided with the benefit of the applicable Loan Documents. To the extent reasonably requested by the Administrative Agent to ensure the continuing priority of the Lien of the Mortgages (if any) as security for the Loans, within 90 days (or such longer period agreed to by the Administrative Agent) after the Commitment Increase Effective Date (x) the Borrower or the Loan Party party to the Mortgages shall either (I) provide written or email confirmation from local counsel in which the Mortgaged Property is located to the effect that no amendment or modification to the existing Mortgage is required under local law in connection with a Commitment Increase to the reasonable satisfaction of the Administrative Agent or the Lenders participating in the Commitment Increase or (II) enter into, and deliver to the Administrative Agent, a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably acceptable to the Administrative Agent and (y) the Borrower shall deliver, or cause the title company or local counsel, as applicable, to deliver, to the Administrative Agent local counsel opinions and a modification endorsement or date down endorsement to the relevant title policies held by Administrative Agent or any Lender (or, to the extent a modification endorsement or date down endorsement is not available in the applicable state, any new title insurance policies) as may be reasonably requested by the Administrative Agent to ensure the continuing priority of the Lien of the Mortgages as security for the Loans, each in form and substance reasonably satisfactory to the Administrative Agent. In addition, as reasonably requested by the Administrative Agent or any Lender, the Borrower shall deliver an
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updated flood hazard certificate or other documentation or coverage as required by the Flood Laws or as otherwise reasonably required by the Administrative Agent or any Lender for each of the Mortgaged Properties prior to the Commitment Increase Effective Date. The Additional Loans shall be made by the Lenders participating therein pursuant to the procedures set forth in Section 2.02 and the applicable Facility Increase Amendment.
(h) Additional Loans. On the date of making each Additional Loan, such Additional Loan shall constitute a “Loan” for all purposes of this Agreement and the other Loan Documents and shall be added to (and form part of) each Borrowing of then outstanding Loans on a pro rata basis so that each Lender will participate proportionately in each then outstanding Borrowing of Loans. Notwithstanding anything herein to the contrary, the Administrative Agent shall be permitted to adjust the rate of repayment in respect of any Loans or Additional Loans such that the Lenders holding the then outstanding Loans continue to receive a payment that is not less than the same dollar amount that such Lenders would have received absent the incurrence of such Additional Loans.
(i) Conflicting Provisions. This Section shall supersede any provisions in Section 2.11 or 10.01 to the contrary.
Section 2.13 Alternate Rate of Interest.
(a) Subject to clauses (b) through (f) of this Section 2.13, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period or (B) at any time (solely if applicable following a Benchmark Replacement or otherwise pursuant to this Section 2.13), that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period or (B) at any time (solely if applicable following a Benchmark Replacement or otherwise pursuant to this Section 2.13), Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Committed Loan Notice, in accordance with the terms of Section 2.02, that requests the
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conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any Committed Loan Notice that requests a Term Benchmark Borrowing shall instead be deemed to be a Committed Loan Notice, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR is also the subject of Section 2.13(a)(i) or (ii) above; provided that, if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Committed Loan Notice in accordance with the terms of Section 2.02, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR is also the subject of Section 2.13(a)(i) or (ii) above; on such day.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document (and any Swap Contract shall be deemed not to be a “Loan Document” for purposes of this Section 2.13), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right, in consultation with the Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any
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Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.13, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.13.
(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing or (solely if applicable pursuant to this Section 2.13) RFR Borrowing, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate. Furthermore, if any Term Benchmark Loan or (solely if applicable pursuant to this Section 2.13) RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.13, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark
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Transition Event or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes.
(a) Payments Free of Taxes: Obligation to Withhold: Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any Loan Party or the Administrative Agent determines in good faith that it is required under applicable Laws to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by such Loan Party or the Administrative Agent, as the case may be.
(ii) If any Loan Party or the Administrative Agent determines that it shall be required by applicable Law or the interpretation thereof by the relevant Governmental Authority to deduct or withhold any Indemnified Taxes from or in respect of any sum payable hereunder or under any other Loan Document, (A) the amount payable shall be increased by such additional amount as may be necessary so that after making all required deductions or withholdings (including, without limitations, deductions or withholdings applicable to additional amounts paid under this Section 3.01) in respect of such Indemnified Taxes, the applicable recipient receives an amount equal to the full amount they would have received had no such withholding or deduction in respect of such Indemnified Taxes or Other Taxes been made, (B) the relevant Loan Party or the Administrative Agent shall make such deductions or withholdings; and (C) the relevant Loan Party or the Administrative Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law.
(b) Payment of Other Taxes by the Loan Parties. Without limiting the provisions of subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent, timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnifications.
(i) The Loan Parties shall, and do hereby, jointly and severally, indemnify the Administrative Agent and each Lender within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such recipient or required to be withheld or deducted from a payment to such recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by
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the relevant Governmental Authority. A certificate as to the amount of any such payment or liability delivered to any Loan Party by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(ii) Each Lender shall severally indemnify the Loan Parties and the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, against (i) any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and reasonable, documented, out-of-pocket expenses (including the reasonable, documented, out-of-pocket fees, charges and disbursements of any counsel for the Loan Parties or the Administrative Agent) incurred by or asserted against any Loan Party or the Administrative Agent by any Governmental Authority as a result of the failure by such Lender to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender to such Loan Party or the Administrative Agent pursuant to subsection (e) and (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register (as defined below). Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Finance Obligations.
(d) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower or the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by applicable Law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, to determine and evidence under applicable Laws and procedures (A) whether or not payments made hereunder or under any other Loan Document are subject to the deduction or withholding of Taxes, (B) if applicable, the required rate of withholding or deduction and (C) such Lender’s entitlement to any available exemption from, or reduction of, any applicable deduction or withholding of Taxes in respect of all payments to be made to such Lender by the Loan Parties pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.
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(ii) Without limiting the generality of the foregoing, if a Loan Party is resident for tax purposes in the United States:
(A) any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent, on or prior to the time such Lender becomes a Lender under this Agreement, properly completed and duly executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(1) Internal Revenue Service Form W-8BEN or W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(2) Internal Revenue Service Form W-8ECI;
(3) Internal Revenue Service Form W-8IMY and all required supporting documentation;
(4) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10-percent shareholder” of any Loan Party within the meaning of Section 871(h)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E; or
(5) any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the applicable Loan Party or the Administrative Agent to determine the withholding or deduction required to be made.
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(iii) If a payment made to a Lender under any Loan Document would be subject to withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for Taxes from amounts payable to such Lender. In furtherance of the foregoing, each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01(e) expires or becomes obsolete or inaccurate in any respect, such Lender shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent, such Xxxxxx agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender in the event the Administrative Agent, such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the indemnified party be required to pay an amount to an indemnifying party pursuant to this subsection the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been
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deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require the Administrative Agent, any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.
(g) Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(h) For purposes of this Section, the term “applicable Law” includes FATCA.
Section 3.02 Illegality. If any Lender reasonably determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Term Benchmark Loans, or to determine or charge interest rates based upon the Term SOFR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Term Benchmark Loans or to convert Base Rate Loans to Term Benchmark Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, within one Business Day of demand therefor from such Lender to the Borrower (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term Benchmark Loans of such Lender to Base Rate Loans either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term Benchmark Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term Benchmark Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
Section 3.03 Inability to Determine Rates. If the Required Lenders reasonably determine for any reason in connection with any request for a Term Benchmark Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Term Benchmark Loan, (ii) adequate and reasonable means do not exist for determining the Term SOFR Rate for any requested Interest Period with respect to a proposed Term Benchmark Loan or in connection with a Base Rate Loan, or (iii) the Term SOFR Rate for any requested Interest Period with respect to a proposed Term Benchmark Loan or in connection with a Base Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain Term Benchmark Loans and Base Rate Loans as to which the interest rate is determined with reference to the Term SOFR Rate shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Term Benchmark Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
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Section 3.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets held by, deposits with or for the account of, or credit extended or participated in by, any Lender (or its Lending Office) (except any reserve requirement which is reflected in the determination of the Adjusted Term SOFR Rate hereunder);
(ii) subject any Lender or the Administrative Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender (or its Lending Office) or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Term Benchmark Loans made by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender (or its Lending Office) of making, converting to, continuing or maintaining any Term Benchmark Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return (i) on such Lender’s or capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or (ii) the Commitments of such Lender or the Loans made by such Lender, then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting forth the basis for, and the calculation of, the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delays in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such
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Xxxxxx notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).
Section 3.05 Compensation for Losses. WITHIN ONE BUSINESS DAY OF WRITTEN DEMAND OF ANY LENDER (WITH A COPY TO THE ADMINISTRATIVE AGENT) FROM TIME TO TIME, THE BORROWER AGREES PROMPTLY TO COMPENSATE SUCH LENDER FOR AND HOLD SUCH LENDER HARMLESS FROM ANY LOSS OR ANY COST OR EXPENSE (OTHER THAN LOST PROFITS) INCURRED BY IT AS A RESULT OF:
(i) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(ii) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(iii) any assignment of a Term Benchmark Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;
including, with respect to clauses (i) through (iii) above, any loss or expense attributable to such an event, including any loss, cost or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Term Benchmark Loan made by it at the Term SOFR Rate used in determining the Adjusted Term SOFR Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Term Benchmark Loan was in fact so funded.
Section 3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed, out-of-pocket cost or
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expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender’s obligation to make, continue or convert Term Benchmark Loans has been suspended pursuant to Section 3.02, the Borrower may replace such Lender in accordance with Section 10.13.
Section 3.07 Survival. All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Senior Credit Obligations hereunder and resignation of the Administrative Agent.
ARTICLE IV
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
Section 4.01 Effective Date Conditions. The effectiveness of each Lender’s Commitment is subject to the satisfaction or waiver of the following conditions precedent:
(a) Deliverables. The Administrative Agent’s receipt of the following, each of which shall be originals or copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Effective Date and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of (A) this Agreement, (B) the Guaranty, (C) the Security Agreement and (D) the Intercreditor Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a Perfection Certificate with respect to each Loan Party, duly executed by a Responsible Officer of Holdings or the Borrower;
(iv) subject to Section 6.15, evidence that the Collateral Documents shall be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first priority (or, in the case of the ABL Priority Collateral, a second priority) perfected security interest and Lien upon the Collateral, including, without limitation:
(1) financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;
(2) proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code of each jurisdiction that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created thereby;
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(3) certificates and instruments representing the Pledged Collateral (as defined in the Security Agreement) referred to therein accompanied by undated stock powers or instruments of transfer executed in blank; and
(4) evidence that all other actions, recordings and filings that the Collateral Agent may deem necessary or desirable in order to perfect, in the United States, the Liens created under the Collateral Documents has been taken;
provided that, (A) to the extent any asset of a Loan Party (to the extent otherwise constituting Collateral) is not pledged as Collateral or any lien thereon is not perfected on the Effective Date after the use of commercially reasonable efforts to do so (other than assets pursuant to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code or the filing of Intellectual Property Security Agreements at the United States Patent and Trademark Office or the United States Copyright Office or the delivery of certificates with respect to certificated equity securities), the pledge of such assets and/or perfection of such lien shall be required to be completed after the Effective Date as provided on Schedule 6.15;
provided, further, that, notwithstanding anything herein, with respect to any IP Rights of a Loan Party constituting Collateral, nothing in this Agreement or any other Loan Document shall require any Loan Party to make any filings or take any other actions outside of the United States to record or perfect the Administrative Agent’s security interest in and Lien upon, for the benefit of the Secured Parties, any such IP Rights of any Guarantor.
(v) a copy of the Organization Documents, including all amendments thereto, of each Loan Party, which shall be certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization to the extent any such Organization Document is required to be filed with the Secretary of State or other Governmental Authority, together with:
(A) a certificate as to the good standing of each Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization;
(B) a certificate of a Responsible Officer of each Loan Party dated the Effective Date and certifying (1) that the Organization Documents of such Loan Party attached thereto are true and complete copies of such Organization Documents as in effect on the Effective Date; (2) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or other governing body of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect; and (3) as to the incumbency and specimen signature of each officer executing any
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Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and
(C) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (B) above;
(vi) a favorable written opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special U.S. counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date; and
(vii) favorable written opinions of one or more firms of other counsel reasonably satisfactory to the Administrative Agent, as special Canadian and Florida counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, dated the Effective Date.
(b) No Default. No Default or Event of Default shall have occurred and be continuing.
(c) Representations and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of representations and warranties qualified by materiality or “Material Adverse Effect”, in all respects) on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of representations and warranties qualified by materiality or “Material Adverse Effect”, in all respects) as of such earlier date.
(d) Patriot Act; Beneficial Ownership Certification. The Administrative Agent and each Lender shall have received, at least three (3) days prior to the Effective Date to the extent requested at least ten (10) Business Days prior to the Effective Date, and be satisfied with all documentation and other information regarding the Loan Parties requested in connection with applicable “know your customer”, “beneficial ownership” and anti-money laundering rules and regulations, including a Beneficial Ownership Certification.
(e) Material Adverse Change. Since December 31, 2021, there shall not have occurred or become known any condition, fact, event or development that has had or could reasonably be expected to have a Material Adverse Effect.
(f) Financial Statements. The Administrative Agent shall have received each of the Historical Financial Statements and the consolidated forecasted balance sheet, statements of income and cash flows of Holdings and its Restricted Subsidiaries through and including Holdings’ 2027 fiscal year.
(g) Effective Date Certificate. The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower (i) certifying that the conditions specified in Sections 4.01(b), 4.01(c) and 4.01(e) have been satisfied and (ii) attaching a true and
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complete copy of the Acquisition Agreement, executed by all parties thereto.
Without limiting the generality of the provisions of the last paragraph of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to that Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Section 4.02 Closing Date Conditions. The obligation of each Lender to make its Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) Effective Date. The Effective Date shall have occurred.
(b) Representations and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of representations and warranties qualified by materiality or “Material Adverse Effect”, in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of representations and warranties qualified by materiality or “Material Adverse Effect”, in all respects) as of such earlier date.
(c) No Default. No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(d) Committed Loan Notice. The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(e) Acquisition and Repayment of Target Credit Agreement. Each of (i) the Acquisition, (ii) the termination of all commitments under the Company Credit Agreement (as defined in the Acquisition Agreement), (iii) the repayment in full of all obligations under the Company Credit Agreement (as defined in the Acquisition Agreement) and release of any Liens and guarantees in connection therewith, shall have been (or shall be) consummated substantially concurrently with the funding of such proposed Credit Extension.
(f) Certain Fees and Expenses. All fees and expenses required to be paid on or before the Closing Date to the Administrative Agent, any Arranger or any Lender shall in each case have been paid (including all reasonable and documented out-of-pocket fees, charges and disbursements of external counsel to the Administrative Agent (which shall be paid directly to such counsel if reasonably requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date).
(g) Closing Date Certificate. The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (A) the Secured Leverage Ratio as of the Closing Date (immediately after giving effect to the funding of the Loans and the
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consummation of the Acquisition) and (B) that (i) the conditions specified in Sections 4.02(b) and 4.02(c) have been satisfied and (ii) to the extent the Closing Date occurs after the Effective Date, there has been no amendment, modification or waiver to the Acquisition Agreement since the Effective Date that is materially adverse to the Lenders, and attaching all amendments, modifications and waivers to the Acquisition Agreement since the Effective Date.
(h) Solvency Certificate. The Administrative Agent shall have received a certificate signed by the chief financial officer of Holdings or the Borrower in the form of Exhibit H attached hereto.
(i) Collateral Matters. Subject to Section 6.15 in all respects and without duplication of any deliverables previously provided pursuant to Section 4.01(a)(iv) for any Loan Party, the Collateral Agent shall have received, each in form and substance reasonably satisfactory to the Administrative Agent, evidence that the Collateral Documents shall be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest and Lien upon the Collateral, subject to Permitted Liens (including the applicable assets owned by the Target and its Domestic Subsidiaries that will constitute Guarantors (collectively, the “Target Loan Parties”)), including, without limitation:
(1) customary searches of UCC, judgment, tax lien and other requested filings in the jurisdiction of organization or formation of the Target Loan Parties, in each jurisdiction where a filing would need to be made in order to perfect the Collateral Agent’s security interest in the Collateral, and in each other jurisdiction requested by the Administrative Agent;
(2) financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;
(3) proper UCC-1 financing statements in form appropriate for filing under the Uniform Commercial Code of each jurisdiction that the Collateral Agent may deem necessary or desirable in order to perfect the Liens created thereby;
(4) certificates and instruments representing the Pledged Collateral (as defined in the Security Agreement) referred to therein accompanied by undated stock powers or instruments of transfer executed in blank; and
(5) evidence that all other actions, recordings and filings that the Collateral Agent may deem necessary or desirable in order to perfect, in the United States, the Liens created under the Collateral Documents has been taken;
provided that, (A) to the extent any asset of the Target Loan Parties (to the extent otherwise constituting Collateral) is not pledged as Collateral or any lien thereon is not perfected on the Closing Date after the use of commercially reasonable efforts to do so (other than assets pursuant to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code, the filing of Intellectual Property Security Agreements at the United States Patent and Trademark Office or the United States Copyright Office or the delivery of certificates with respect to certificated equity
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securities), the pledge of such assets and/or perfection of such lien shall be required to be completed after the Closing Date as provided on Schedule 6.15;
provided, further, that, notwithstanding anything herein, with respect to any IP Rights of a Loan Party constituting Collateral, nothing in this Agreement or any other Loan Document shall require any Loan Party to make any filings or take any other actions outside of the United States to record or perfect the Administrative Agent’s security interest in and Lien upon, for the benefit of the Secured Parties, any such IP Rights of any Guarantor.
(j) Target Loan Party Documentation. Subject to Section 6.15 in all respects, the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of an Accession Agreement and such other documents as may be requested by the Administrative Agent to join all Target Loan Parties to the Guaranty and each applicable Collateral Document,
(ii) an updated Perfection Certificate accounting for Target Loan Parties, duly executed by a Responsible Officer of Holdings,
(iii) a copy of the Organization Documents, including all amendments thereto, of each Target Loan Party, which shall be certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization to the extent any such Organization Document is required to be filed with the Secretary of State or other Governmental Authority, together with:
(A) a certificate as to the good standing of each Target Loan Party, as of a recent date, from the Secretary of State or other applicable authority of its respective jurisdiction of organization;
(B) a certificate of a Responsible Officer of each Target Loan Party, dated the Closing Date and certifying (1) that the Organization Documents of the Target Loan Parties attached thereto are true and complete copies of such Organization Documents as in effect on the Closing Date; (2) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or other governing body of such Target Loan Parties authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party; and (3) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Target Loan Parties; and
(C) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (B) above;
(iv) a favorable written opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP and other special counsel reasonably satisfactory to the Administrative Agent, each as counsel to the Target Loan Parties, addressed to the Administrative Agent, the Collateral
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Agent and each Lender, dated the Closing Date, covering the joinder of the Target Loan Parties; and
(v) The Administrative Agent and each Lender shall have received, at least three (3) days prior to the Closing Date to the extent requested at least ten (10) Business Days prior to the Closing Date, and be satisfied with all documentation and other information regarding the Target Loan Parties requested in connection with applicable “know your customer”, “beneficial ownership” and anti-money laundering rules and regulations, including a Beneficial Ownership Certification.
(k) Closing Date. The Closing Date shall not occur after March 31, 2023.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the Administrative Agent and the Lenders that:
Section 5.01 Existence, Qualification and Power. Each Loan Party and each of its Restricted Subsidiaries (i) is duly organized, formed, incorporated or continued, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation, organization or continuation, (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (A) own or lease its assets and carry on its business and (B) execute, deliver and perform its obligations under the Loan Documents, and (iii) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license (to the extent the concept of good standing is applicable to such Loan Party or Restricted Subsidiary under the Laws of such jurisdiction); except in each case referred to in clause (ii)(A) or (iii), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party have been duly authorized by all necessary corporate, partnership, limited liability company or other organizational action, and do not and will not (i) contravene the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien (other than Permitted Liens) under, (A) any Contractual Obligation to which such Person is a party or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law, except in each case for such violations which could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Section 5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization or other action by, or notice to or filing with, any Governmental Authority or any other Person is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the
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Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents or (iv) the exercise by the Administrative Agent, the Collateral Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except (A) for those approvals, consents, exemptions, authorizations or other actions by, or notices to or filings with, any Governmental Authority or any other Person as have been obtained as of the Effective Date and (B) filings and recordings necessary to perfect and maintain the perfection of the Liens created pursuant to the Collateral Documents.
Section 5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (ii) that rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability (regardless of whether enforcement is sought by proceedings in equity or at law).
Section 5.05 Financial Condition; No Material Adverse Effect.
(a) Historical Financial Statements. The Historical Financial Statements: (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present, in all material respects, the financial condition of Holdings and its Restricted Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of Holdings and its Restricted Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) Material Adverse Effect. There has been no event or circumstance since December 31, 2021, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(c) Projections. Each of the consolidated forecasted balance sheet, statements of income and cash flows of Holdings and its Restricted Subsidiaries delivered pursuant to Section 4.01(g) and Section 6.01(c) were prepared in good faith on the basis of the good faith estimates and assumptions stated therein, which assumptions, taken as a whole, were believed by Holdings to be reasonable at the time of delivery of such forecasts, and represented, at the time of delivery, Holdings’ reasonable and fair estimate of its future financial condition and performance, it being understood that such forecasts may be subject to material uncertainties and contingencies which may be beyond the control of the Loan Parties, are not to be viewed as facts, that actual results during the period covered by such forecasts may differ from the forecasted results and that such differences may be material.
(d) Other Financial Statements. The financial statements delivered to the
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Lenders pursuant to Section 6.01(a) and (b), if any, (i) have been prepared in accordance with GAAP (except as may otherwise be permitted under Section 6.01(a) and (b)) and (ii) present fairly (on the basis disclosed in the footnotes to such financial statements, if any) in all material respects the consolidated financial condition, results of operations and cash flows of Holdings and its Consolidated Restricted Subsidiaries as of the respective dates thereof and for the respective periods covered thereby.
(e) No Undisclosed Liabilities. Except as fully reflected in the Historical Financial Statements, (i) there were as of the Effective Date, no liabilities or obligations (excluding current obligations incurred in the ordinary course of business) with respect to any Group Company of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due and including obligations or liabilities for taxes, long-term leases and unusual forward or other long-term commitments), and (ii) no Loan Party knows of any basis for the assertion against any Group Company of any such liability or obligation which, either individually or in the aggregate, are or could reasonably be expected to have, a Material Adverse Effect.
(f) Intercompany Debt. No Loan Party is liable, directly or indirectly, with respect to any Indebtedness for borrowed money owing to any Subsidiary of Holdings that is not a Loan Party, except for those Subsidiaries which have executed and delivered an Intercompany Subordination Agreement as payee thereunder.
Section 5.06 Litigation. There are no actions, suits, grievances, proceedings, claims or disputes pending or, to the knowledge of any Loan Party, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against any Group Company or against any of their properties or revenues that (i) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (ii) either individually or in the aggregate, which, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
Section 5.07 No Default. No Group Company is currently in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement.
Section 5.08 Ownership of Property; Liens; Investments.
(a) Title. Each Loan Party and each of its Restricted Subsidiaries has good and marketable title in fee simple to, or valid leasehold interests in, all material real property necessary or used in the ordinary conduct of its business, including the Mortgaged Property, except for (i) such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) Permitted Liens.
(b) Liens. Schedule 5.08(b) sets forth a complete and accurate list of all Liens on the property or assets of each Loan Party, in each case, other than Liens securing an aggregate principal amount of obligations less than $10,000,000, showing as of the date hereof the lienholder thereof and the property or assets of such Loan Party or such Restricted Subsidiary
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subject thereto. The property of each Loan Party and each of its Restricted Subsidiaries is subject to no Liens, other than Liens set forth on Schedule 5.08(b), or as otherwise permitted by Section 7.01.
(c) Owned Real Property. Schedule 5.08(c) sets forth a complete and accurate list of all material real property (including all Mortgaged Properties) owned in fee simple by each Loan Party and each of its Restricted Subsidiaries, showing as of the date hereof the applicable record fee owner, street address, county or other relevant jurisdiction and state where such real property is located.
(d) Leases.
(i) Schedule 5.08(d)(i) sets forth a complete and accurate list of all material leases of real property under which any Loan Party or any Restricted Subsidiary of a Loan Party is the lessee, showing as of the date hereof the applicable lessor, lessee, street address, county or other relevant jurisdiction and state where such real property is located.
(ii) Schedule 5.08(d)(ii) sets forth a complete and accurate list of all leases of real property under which any Loan Party or any Restricted Subsidiary of a Loan Party is the lessor, showing as of the date hereof the applicable lessor, lessee, street address, county or other relevant jurisdiction and state where such real property is located.
(e) Investments. Schedule 5.08(e) sets forth a complete and accurate list of all Investments held by any Loan Party or any Restricted Subsidiary of a Loan Party on the date hereof, showing as of the date hereof the amount and obligor or issuer thereof.
Section 5.09 Environmental Compliance. (a) The Loan Parties and their respective Restricted Subsidiaries are in compliance with all Environmental Laws and have not received notice of any claims alleging potential liability or responsibility for violation of any Environmental Law with respect to their respective businesses, operations and properties, except where failure to comply with Environmental Laws or the adverse determination of such claims would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) None of the properties currently or, to the knowledge of the Loan Parties, formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list, except where the basis for such listing or proposed listing would not reasonably be expected to have a Material Adverse Effect; there are no and, to the knowledge of the Loan Parties, never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Restricted Subsidiaries or, to the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries, and there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Restricted Subsidiaries, except where the presence or former presence of such storage
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tanks, impoundments, septic tanks, pits, sumps, lagoons, asbestos or asbestos-containing material would not reasonably be expected to have a Material Adverse Effect; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries, expect where such release, discharge or disposal would not reasonably be expected to have a Material Adverse Effect.
(c) Neither any Loan Party nor any of its Restricted Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law, except where such investigation, assessment, or remedial or response action would not reasonably be expected to have a Material Adverse Effect; and none of the Loan Parties or their respective Restricted Subsidiaries have generated, used, treated, handled, stored, transported, or disposed of any Hazardous Materials in a manner that would reasonably be expected to have a Material Adverse Effect.
Section 5.10 Insurance. The properties of each Loan Party are insured with financially sound and reputable insurance companies not Affiliates of the Borrower (or, consistent with industry practice, a program of self-insurance administered by a captive insurance subsidiary of Holdings which, in the case of property insurance for the Loan Parties, shall be reasonably satisfactory to the Administrative Agent), in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party operates.
Section 5.11 Taxes. Each Loan Party and its Restricted Subsidiaries have filed all United States federal, and Canadian federal and provincial and other material tax returns and reports required to be filed, and have paid all United States federal, Canadian federal and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (i) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (ii) where the failure to do so could not reasonably be expected to have a Material Adverse Effect. Holdings and each Canadian Subsidiary has remitted all Pension Plan contributions, provincial pension plan contributions, workers’ compensation assessments, employment insurance premiums, employer health taxes, municipal real estate taxes and other taxes payable by Holdings or any Canadian Subsidiary under applicable law, and has withheld from each payment made to any of its present or former employees, officers and directors, and to all persons who are non-residents of Canada for the purposes of the Income Tax Act (Canada) all amounts required by law to be withheld, including, without limitation, all payroll deductions required to be withheld, and has remitted such amounts to the proper Governmental Authority within the time required under applicable law, except in each case where the failure to do so could not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Loan Parties, there is no proposed tax assessment against any Loan Party or any Restricted Subsidiary that is not being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP, except to the extent such proposed tax assessment could not reasonably be expected to have a Material Adverse Effect.
Section 5.12 ERISA; Foreign Pension Plans; Employee Benefit Arrangements.
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(a) Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, each Plan (other than a Multiemployer Plan) and each Canadian Pension Plan is in compliance with the applicable provisions of ERISA, the Code, Canadian Employee Benefits Legislation and all other applicable Laws. Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS, relies on an opinion letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate have made all required contributions to each Pension Plan, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan. Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, (i) each Loan Party has made all of its required contributions (including “normal cost,” “special payments” and any other required payments in respect of funding deficiencies) to each Canadian Pension Plan and Canadian Union Plan, (ii) there are no outstanding obligations, liabilities, defaults or violations by Holdings in respect of any Canadian Pension Plan or Canadian Union Plan, (iii) no taxes, penalties or fees are owing or eligible under any Canadian Pension Plan, and (iv) there are no outstanding liabilities in relation to the employment of any Canadian Employees or the termination of employment of any Canadian Employees.
(b) There are no pending or, to the knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan or Canadian Pension Plan that could reasonably be expected to result in a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan (other than a Multiemployer Plan) that has resulted or could reasonably be expected to result in a Material Adverse Effect. With respect to any Canadian Union Plan, the sole obligation of the Loan Parties is to make contributions in accordance with the collective bargaining agreement providing for participation in such Canadian Union Plan by employees of Holdings or any of its Canadian Subsidiaries. None of the Canadian Union Plans are registered in the Province of Québec or have members employed within the Province of Québec. No current or former employee or director of Holdings or any of its Canadian Subsidiaries is or has at any time been a trustee of a Canadian Union Plan that is an Ontario-registered multi-employer pension plan.
(c) Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan or Canadian Pension Plan has any Unfunded Pension Liability; (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) no Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(d) Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, Holdings and each of its Canadian Subsidiaries are in compliance
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with the requirements of Canadian Employee Benefits Legislation and other federal, provincial or local laws with respect to each Canadian Pension Plan. Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, neither Holdings nor any of its Canadian Subsidiaries has any withdrawal liability (including and withdrawal liability inherited or incurred as a successor employer) in connection with a Canadian Union Plan. Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, no Pension Event has occurred. No Lien has arisen or exists, xxxxxx or inchoate, in respect of Holdings or any of its Canadian Subsidiaries or any of their property in connection with any Canadian Pension Plan (save for contribution amounts not yet due).
(e) Except as has not resulted or could not reasonably be expected to result in a Material Adverse Effect, with respect to each scheme or arrangement subject to laws of a Governmental Authority other than the United States or Canada, and with respect to each employee benefit health, welfare, severance, deferred compensation, bonus, medical, dental, or other employee group or similar benefit or employment plan maintained or contributed to by any Loan Party or any Restricted Subsidiary of any Loan Party that is not subject to United States or Canadian law (each, a “Foreign Plan”):
(i) any employer and employee contributions required by law or by the terms of any Foreign Plan have been made, all obligations with respect to any Foreign Plan have been satisfied, and no defaults or violations exist without respect to any Foreign Plan;
(ii) the fair market value of the assets of each Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is equal to or exceeds the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and
(iii) each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(f) None of Holdings or any of its Canadian Subsidiaries sponsors, administers, maintains or contributes to or has any liability under or in respect of a Defined Benefit Plan.
(g) Assuming no portion of the assets used by any Lender in connection with the Loans constitutes “plan assets” within the meaning of the Plan Asset Regulations, none of the Loan Parties is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations), and neither the execution, delivery nor performance of the transactions contemplated under this Agreement, including the making of any Loan, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
Section 5.13 Subsidiaries; Equity Interests; Loan Parties. No Loan Party has any direct or indirect Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13. No Loan Party has any equity investments in any other corporation or entity other than those
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specifically disclosed in Part (b) of Schedule 5.13. Set forth on Part (c) of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as of the Effective Date (as to each Loan Party) the jurisdiction of its incorporation.
Section 5.14 Margin Regulations; Investment Company Act.
(a) Neither Holdings or any of its Subsidiaries is engaged and none will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing, not more than 25% of the value of the assets (either of the Borrower only or of Holdings and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between Holdings or any of its Subsidiaries and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.
Section 5.15 Disclosure. No written report, financial statement, certificate or other information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case as modified or supplemented by other information so furnished), taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein as of the date such information is so furnished, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon estimates and assumptions believed to be reasonable and fair at the time prepared, it being understood and acknowledged that projections are as to future events and are not to be viewed as facts and may be subject to material uncertainties and contingencies which may be beyond the control of the Borrower, and no assurances can be given that any particular projections will be realized and that actual results during the period or periods covered by the projections may materially differ significantly from the projected results.
Section 5.16 Compliance with Law. Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 5.17 Intellectual Property. Each Loan Party and each of its Restricted Subsidiaries owns, or possesses the right to use, all IP Rights that are reasonably necessary for the operation of its business, without, to the knowledge of Holdings, conflict with the rights of
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any other Person, except as such failure to own or possess, or such conflict, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. To the knowledge of Holdings, no slogan or other advertising device, product, process, method, substance, part or other material now employed by any Loan Party or any of its Restricted Subsidiaries (or operation of the business of each Loan Party and each of its Restricted Subsidiaries as currently conducted) infringes upon, misappropriates or otherwise violates any rights held by any other Person, except for any such infringements, misappropriations or other violations that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of Holdings, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.18 Solvency. The Loan Parties are, on a consolidated basis, Solvent.
Section 5.19 Casualty, Etc. Neither the businesses nor the properties of any Loan Party or any of its Restricted Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect
Section 5.20 Labor Matters. To the knowledge of Holdings, there are no strikes, work stoppages, work slowdowns or other labor dispute against Holdings or any of its Restricted Subsidiaries, other than any strikes, work stoppages, work slowdowns or other labor dispute that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All payments due from Holdings or any of its Restricted Subsidiaries, or for which any claim may be made against Holdings or any of its Restricted Subsidiaries, on account of wages and employee health and welfare insurance, workers compensation and other benefits have been paid or accrued as a liability on the books of Holdings and its Restricted Subsidiaries, as applicable, except for (i) any unpaid amounts which are contested in good faith by appropriate proceedings diligently conducted or (ii) any unpaid amounts that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 5.21 Collateral Documents.
(a) Collateral. The provisions of the Collateral Documents, together with such filings and other actions required to be taken hereby or by the applicable Collateral Documents are effective to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid, enforceable and perfected first priority (or with respect to the ABL Priority Collateral, second priority) Lien on all right, title and interest of the respective Loan Parties in the Collateral described therein, except as priority may be affected by Permitted Liens.
(b) Status of Liens. The Collateral Agent, for the ratable benefit of the Secured Parties, will at all times have the Liens provided for in the Collateral Documents and, subject to the filing by the Collateral Agent of continuation statements to the extent required by the Uniform Commercial Code, the Collateral Documents will at all times constitute valid and continuing Liens of record and (i) first priority perfected Liens in all the Collateral (other than the ABL Priority Collateral) referred to therein and (ii) second priority perfected Liens in all the
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ABL Priority Collateral, except in each case, as priority may be affected by Permitted Liens.
Section 5.22 Immaterial Subsidiaries. Each Immaterial Subsidiary as of the Effective Date is listed on Schedule 1.01A. Each Immaterial Subsidiary (i) does not own any Inventory, Receivables or any other asset that would be required to constitute Collateral (if owned by a Loan Party) having a value (determined to be the greater of the book value or the fair value) in excess of $5,000,000 in the aggregate for all such properties and assets of each individual Immaterial Subsidiary and $20,000,000 in the aggregate for all such properties and assets of all Immaterial Subsidiaries and (ii) does not own any Equity Interests of any Loan Party. No Loan Party is an Immaterial Subsidiary.
Section 5.23 Patriot Act; Beneficial Ownership. To the extent applicable, each Loan Party is in compliance, in all material respects, with (a) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) the Patriot Act. As of the Effective Date, the information included in the Beneficial Ownership Certification provided pursuant to Section 4.01(d) is true and correct in all respects.
Section 5.24 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. No Loan Party or any of its Subsidiaries is in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws. No Loan Party or any of its Subsidiaries, nor any of their respective directors, officers or employees or, to the knowledge of any Loan Party, any of their respective agents is a Sanctioned Person. No Loan Party nor any of its Subsidiaries nor, to the knowledge of such Loan Party, any director, officer or employee of such Loan Party or such Subsidiary (a) has any assets located in a Sanctioned Country to the extent prohibited by Sanctions, (b) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Countries to the extent prohibited by Sanctions or (c) has in the last five years received written notice of any action, suit proceeding or investigation against it in the last five years with respect to Sanctions from any Sanctions Authority. Each of the Loan Parties and their Subsidiaries and each director, officer, employee and, to the knowledge of each such Loan Party, agent of each such Loan Party and each such Subsidiary is in compliance in all material respects with Anti-Corruption Laws. Each of the Loan Parties and its Subsidiaries has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance with all applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. No litigation, regulatory or administrative proceedings of or before any court, tribunal or agency with respect to any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws have in the last five years been started (or to the reasonable knowledge of the Loan Parties) threatened against any Loan Party or any of its Subsidiaries.
Section 5.25 Affected Financial Institutions. No Loan Party is an Affected Financial Institution.
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ARTICLE VI
AFFIRMATIVE COVENANTS
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Senior Credit Obligation shall remain unpaid or unsatisfied (other than Senior Credit Obligations in respect of unasserted indemnification and expense reimbursement obligations that survive the termination of this Agreement or obligations and liabilities under any Secured Hedge Agreement or Secured Cash Management Agreement, in each case, not yet due and payable), each of Holdings and the Borrower shall (except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11, but only to the extent Holdings shall have fully performed such covenants), and shall cause each of its Restricted Subsidiaries to:
Section 6.01 Financial Statements. Deliver (to the extent not publicly available on SEC’s XXXXX system) to the Administrative Agent and each Lender and post on Holdings’ website (in a format that is accessible to the Administrative Agent and the Lenders):
(a) Annual Financial Statements. As soon as available (including as soon as the following are released to shareholders or creditors of Holdings or the Borrower), but in any event within 90 days after the end of each fiscal year of Holdings ending after the Closing Date, a consolidated balance sheet of Holdings and its Restricted Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit.
(b) Quarterly Financial Statements. As soon as available (including as soon as the following are released to shareholders or creditors of Holdings or the Borrower), but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Holdings (commencing with the first fiscal quarter ending after the Closing Date), a consolidated balance sheet of Holdings and its Restricted Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of Holdings’ fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief executive officer, chief financial officer, treasurer or controller of Holdings as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its Restricted Subsidiaries, as applicable, in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
(c) Business Plan and Budget. As soon as available (including as soon as the following are released to shareholders or creditors of Holdings or the Borrower), but in any event no later than 30 days after the start of each fiscal year of Holdings ending after the Closing Date, an annual forecast and budget of Holdings and its Restricted Subsidiaries on a consolidated basis,
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including forecasts prepared by management of Holdings, of consolidated balance sheets and statements of income or operations and cash flows of Holdings and its Restricted Subsidiaries on a monthly basis for such fiscal year.
Section 6.02 Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a) Auditors’ Certificate. Concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants in the form customarily given by such accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default under Section 7.11 or, if any such Default shall exist, stating the nature and status of such event.
(b) Compliance Certificate. Concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (i) a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings and (ii) a copy of management’s discussion and analysis with respect to such financial statements.
(c) Management Letters. Promptly after any request by the Administrative Agent or any Lender, copies of any management letters or material recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Group Company by independent accountants in connection with the accounts or books of any Group Company, or any audit of any of them.
(d) SEC Reports; Commission Reports. Promptly after the filing thereof, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Holdings, and copies of all annual, regular, periodic and special reports and registration statements which any Group Company may file or be required to file with the OSC, with any U.S. or Canadian national or provincial securities exchanges or commissions or with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto.
(e) Reports to Holders of Debt Securities. Promptly after the furnishing thereof, and in any event within 10 Business Days, copies of any material financial statement or notice (including reports) furnished to any agent or lender under any of the Note Indentures or the ABL Credit Agreement (and in each case, any refinancing or replacement thereof) or any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02; provided that any notices that are required to be delivered in connection with the ABL Credit Agreement shall be limited to notices (A) provided under Section 6.03(i), (ii), (iii) and (iv) thereof and (B) of the occurrence of a Cash Dominion Event (as defined in the ABL Credit Agreement).
(f) Investigations.
(i) Promptly, and in any event within 10 Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other
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correspondence received from the OSC, SEC (or comparable agency in any applicable non-United States jurisdiction or other Canadian province) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and
(ii) Promptly, and in any event within 10 Business Days after receipt thereof by any Loan Party or any Subsidiary, director, officer or employee of such Loan Party, copies of each notice or other correspondence received from any Sanctions Authority concerning any action, suit, proceeding or investigation or possible action, suit, proceeding or investigation against it with respect to Sanctions.
(g) Certain Environmental Reports. Promptly, and in any event within 10 Business Days after obtaining knowledge thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with respect to any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect.
(h) Plan Information. Promptly after receipt thereof by Holdings or the Borrower, any notices or reports prepared pursuant to Section 101(k) or Section 101(l) of ERISA, which notices or reports Holdings and the Borrower shall, and shall cause each Subsidiary to, request on an annual basis by March 15 of each year.
(i) Other Information. Promptly, and in any event within 10 Business Days (or such longer period agreed to by the Administrative Agent in its reasonable discretion), such additional information regarding the business, financial, legal or corporate affairs of any Loan Party or any Subsidiary thereof as the Administrative Agent or any Lender may from time to time reasonably request (including, without limitation, information and documentation relating to “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation).
(j) Canadian Plans. As soon as available, copies of any material report filed under Canadian Employee Benefits Legislation in connection with each Canadian Pension Plan, and within 30 days after the filing thereof with the FSCO or any other applicable Governmental Authority, or within 10 days of a Responsible Officer of Holdings or any of its Canadian Subsidiaries having knowledge of a Pension Event which has occurred, copies of each report, valuation, request for amendment, notice of whole or partial winding up, withdrawal or termination or other variation.
Documents required to be delivered pursuant to Section 6.01 or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC, OSC or other securities commissions in Canada) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date: (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on Holdings’ behalf on an Internet or Intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease
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delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent, but the Administrative Agent may rely on an electronic or facsimile copy until receipt of such paper copies. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Each Loan Party hereby acknowledges that (i) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of Holdings or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material nonpublic information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. To the extent any Public Lenders are party hereto, each Loan Party hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that: (w) all the Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” each Loan Party shall be deemed to have authorized the Agents, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to Holdings or the Borrower or their respective securities for purposes of United States federal, state, Canadian federal and provincial securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Agents and the Arrangers shall be entitled to treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Section 6.03 Notices. Promptly notify the Administrative Agent in writing of:
(i) the occurrence of any Default or Event of Default;
(ii) (A) the breach or non-performance of, or any default under, any Contractual Obligation of any Group Company that could reasonably be expected to result in a Material Adverse Effect, and (B) any dispute, litigation, investigation, proceeding or suspension between Holdings or any of its Subsidiaries and any Governmental Authority, in each case, for which there is a reasonable possibility of an adverse determination and if adversely determined could reasonably be expected to have a Material Adverse Effect;
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(iii) the occurrence of any ERISA Event or Pension Event;
(iv) any material change in accounting policies or financial reporting practice by Holdings or any of its Subsidiaries; and
(v) (A) the occurrence of any Disposition of property or assets for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.03(b) and (B) the receipt of any Insurance Proceeds or Condemnation Awards for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.03(b).
Each notice pursuant to this Section 6.03 (other than Section 6.03(v)) shall be accompanied by a statement of a Responsible Officer of Holdings setting forth details of the occurrence referred to therein and stating what action Holdings has taken and propose to take with respect thereto. Each notice pursuant to Section 6.03(i) shall describe with particularity any and all provisions of this Agreement or the other Loan Documents that have been breached.
Section 6.04 Payment of Obligations. Pay and discharge, as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by Holdings, the Borrower or the applicable Restricted Subsidiary, except where the failure to pay such amounts would not have a Material Adverse Effect.
Section 6.05 Preservation of Existence Etc. (i) Preserve, renew and maintain in full force and effect its legal existence and good standing (or equivalent status, if any) under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05; (ii) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises reasonably necessary in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (iii) take all reasonable action to preserve, renew and keep in full force and effect all of its registered IP Rights (including issued patents, and registered trademarks, trade names and service marks, but excluding IP Rights that expire in accordance with their maximum statutory term), the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
Section 6.06 Maintenance of Properties. (i) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear, Casualty and Condemnation excepted; and (ii) make all reasonably necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower (or, consistent with industry practice, a program of self-insurance administered by a capture insurance subsidiary of Holdings which, in the case of property insurance for the Loan Parties, shall be reasonably satisfactory to the Administrative Agent), insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar
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business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons and providing for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance. Without limiting the generality of the foregoing, the Loan Parties will maintain or cause to be maintained replacement value casualty insurance on the Collateral under such policies of insurance, with such insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, and shall maintain flood insurance on all Real Property constituting Collateral from such providers, in amounts and on terms in accordance with the Flood Laws or as otherwise satisfactory to all Lenders. Each such policy of insurance shall (i) name the Collateral Agent as an additional insured thereunder as its interests may appear, (ii) in the case of each Casualty Insurance Policy, contain a loss payable endorsement, reasonably satisfactory in form and substance to the Collateral Agent, that names the Collateral Agent as the loss payee thereunder.
Section 6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
Section 6.09 Books and Records. Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of Holdings or such Subsidiary, as the case may be.
Section 6.10 Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial, operating, environmental, health and safety records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably requested, upon reasonable advance notice to the Borrower, except that the Administrative Agent, the Collateral Agent and the Lenders, collectively, may only make one such inspection/examination at the expense of the Loan Parties during any twelve-month period; provided, however, that, if an Event of Default has occurred and is continuing, the Administrative Agent (or its designees) may from time to time make such additional inspections/examination as the Administrative Agent may request (it being understood that the Administrative Agent may, at its own expense, from time to time make such additional inspections/examinations as the Administrative Agent may reasonably request).
Section 6.11 Use of Proceeds. Use the proceeds of the Credit Extensions on the Closing Date to finance the Acquisition and to pay fees and expenses incurred related to the transactions contemplated by the Acquisition and this Agreement; provided that any remaining proceeds may be used for general corporate purposes not in contravention of any Law or of any Loan Document; provided, further, that, (i) no part of the proceeds of any Loan will be used to
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make any payments to a Sanctioned Country or a Sanctioned Person, to directly or indirectly fund any investments, loans or contributions in, or otherwise make such proceeds available to, a Sanctioned Country or a Sanctioned Person, to directly or indirectly fund any operations, activities or business of a Sanctioned Country or a Sanctioned Person, or in any other manner that would result in a violation of Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws by any Person, (ii) without limiting the generality of the foregoing, no part of the proceeds of any Loan will be used to directly fund or, to the reasonable knowledge of the Loan Parties, indirectly fund an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws and (iii) no funds or assets used to make any repayment of the Loans shall be derived from (a) any activity that, at the time of such activity, violated or would have violated if engaged by the Lender, any applicable Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws, or (b) any activity that involved, directly or indirectly, any entity or individual who was, at the time of such activity, a Sanctioned Country or Sanctioned Person.
Section 6.12 Additional Loan Parties; Additional Security.
(a) Additional Subsidiary Guarantors. Each Loan Party will take, and will cause each of its Wholly Owned Subsidiaries (other than Excluded Subsidiaries) to take, such actions from time to time as shall be reasonably necessary to ensure that all Wholly Owned Subsidiaries of Holdings (other than Excluded Subsidiaries and the Borrower) are Subsidiary Guarantors. Without limiting the generality of the foregoing and subject to Section 4.02(j) and Section 6.12(c), (x) if any Loan Party shall form or acquire after the Effective Date any new Wholly Owned Subsidiary (including, without limitation, upon the formation of any Subsidiary that is a Divided Delaware LLC and is not otherwise an Excluded Subsidiary) which is not designated in writing by the Borrower as an Immaterial Subsidiary or an Unrestricted Subsidiary in accordance with the definition of “Immaterial Subsidiary” or “Unrestricted Subsidiary”, as applicable, and (y) upon the designation of any Unrestricted Subsidiary as a Restricted Subsidiary, which is a Wholly Owned Subsidiary and not otherwise an Excluded Subsidiary, then, in each case, the Borrower, as soon as practicable and in any event within 30 Business Days after such formation, acquisition or designation, will provide the Collateral Agent with written notice of such formation, acquisition or designation setting forth in reasonable detail a description of all of the assets of such Wholly Owned Subsidiary and will cause such Wholly Owned Subsidiary (other than an Excluded Subsidiary) to:
(i) within 30 Business Days after such formation, acquisition or designation, execute an Accession Agreement pursuant to which such Wholly Owned Subsidiary shall agree to become a “Guarantor” under the Guaranty and an “Obligor” under the Security Agreement and/or an obligor under such other Collateral Documents as may be applicable to such Wholly Owned Subsidiary to the extent permissible under applicable Law;
(ii) no later than 10 Business Days prior to the date such Wholly Owned Subsidiary becomes a Loan Party, deliver all information and documentation with respect to such Wholly Owned Subsidiary contemplated by Section 5.23 to the extent requested by a Lender no later than 20 Business Days prior to the date such Wholly Owned Subsidiary becomes a Loan Party;
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(iii) within 45 days after such formation, acquisition or designation, to the extent permissible under applicable Law, cause such Wholly Owned Subsidiary and each direct and indirect parent of such Wholly Owned Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent, security agreements and other instruments, as specified by and in form and substance reasonably satisfactory to the Administrative Agent in and of such Wholly Owned Subsidiary, securing payment of all the Finance Obligations of such Wholly Owned Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all its assets and properties that are of a type constituting or intended to constitute Collateral;
(iv) within 45 days after such formation, acquisition or designation, cause such Wholly Owned Subsidiary and each direct and indirect parent of such Wholly Owned Subsidiary (if it has not already done so) to take whatever action (including the filing of Uniform Commercial Code financing statements, and the giving of notices and the endorsement of notices on title documents) may be reasonably necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Collateral Documents and any other security and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms;
(v) within 45 days after such formation, acquisition or designation, deliver to the Administrative Agent, upon the request of the Administrative Agent in its reasonable discretion, a signed copy of a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties in the jurisdiction where such Person is organized as to the matters contained in clauses (i), (iii) and (iv) above, and as to such other matters as the Administrative Agent may reasonably request; and
(vi) deliver such proof of organizational authority, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Loan Party pursuant to Section 4.01 on the Effective Date or Section 4.02 on the Closing Date or as the Administrative Agent, the Collateral Agent or the Required Lenders shall have reasonably requested.
Notwithstanding anything herein to the contrary, any Domestic Subsidiary that guarantees the ABL Facility shall be required to become a Guarantor hereunder.
(b) Additional Security. Subject to Section 6.12(c), each Loan Party will cause, and will cause each of its Wholly Owned Subsidiaries (other than Excluded Subsidiaries) to cause all other assets and properties of such Loan Party and its Wholly Owned Subsidiaries (other than any Excluded Subsidiaries) that are of a type constituting or intended to constitute Collateral but are not covered by the original Collateral Documents and as may be reasonably requested by the Collateral Agent or the Required Lenders in their reasonable discretion to be subject at all times to first priority, or second priority to the extent relating to ABL Priority Collateral, perfected Liens (subject only to Permitted Liens) in favor of the Collateral Agent pursuant to the Collateral Documents or such other security agreements, pledge agreements or
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similar collateral documents as the Collateral Agent shall request in its sole reasonable discretion (collectively, the “Additional Collateral Documents”).
In furtherance of the foregoing terms of this clause (b), upon the acquisition of any property (other than Excluded Property) referred to in the preceding paragraph by any Loan Party after the Effective Date, if such property, in the judgment of the Collateral Agent, shall not already be subject to a perfected first priority, or second priority to the extent relating to ABL Priority Collateral, Lien in favor of the Collateral Agent for the benefit of the Secured Parties, then the Borrower shall, at the Borrower’s reasonable expense:
(i) within 20 days after such acquisition, furnish to the Collateral Agent a description of the property so acquired in detail reasonably satisfactory to the Administrative Agent;
(ii) within 45 days after such acquisition, cause the applicable Loan Party to duly execute and deliver to the Collateral Agent instruments of accession to the Collateral Documents and other security and similar agreements (including Intellectual Property Security Agreements), as specified by and in form and substance reasonably satisfactory to the Collateral Agent, securing payment of all the Finance Obligations of the applicable Loan Party under the Finance Documents and constituting Liens on all such properties that are Collateral;
(iii) within 45 days after such acquisition, cause the applicable Loan Party to take whatever action (including the filing of Uniform Commercial Code financing statements, the filing of Intellectual Property Security Agreements and the giving of notices and the endorsement of notices on title documents) may be reasonably necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens on such property, enforceable against all third parties;
(iv) within 60 days after such acquisition, deliver to the Collateral Agent, upon the request of the Collateral Agent in its reasonable discretion, a signed copy of a favorable opinion, addressed to the Collateral Agent and the other Secured Parties, of counsel for the Loan Parties in the jurisdiction where such Person is organized as to the matters contained in clauses (ii) and