Amended and Restated Credit Agreement dated as of August 31, 2022 among BIO- TECHNE CORPORATION, the Guarantors from time to time parties hereto, the Lenders from time to time parties hereto, and BMO Harris Bank N.A., as Administrative Agent and as...
Amended and Restated Credit Agreement
dated as of August 31, 2022
among
BIO-TECHNE CORPORATION,
the Guarantors from time to time parties hereto,
the Lenders from time to time parties hereto,
and
BMO Xxxxxx Bank N.A.,
as Administrative Agent and as Sustainability Structuring Agent
BMO Capital Markets, JPMorgan Chase Bank N.A. and PNC Capital Markets LLC,
as Joint Lead Arrangers and Joint Book Runners
U.S. Bank National Association, Bank of America, N.A. and
Xxxxx Fargo Bank, National Association,
as Syndication Agents,
and
Huntington National Bank, KeyBank National Association and M&T Bank (as successor by merger to People’s United Bank, N.A),
as Documentation Agents.
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EXHIBITS:
Exhibit A – Form of Notice of Borrowing
Exhibit B – Form of Notice of Continuation/Conversion
Exhibit C-1 – Form of Term Note
Exhibit C-2 – Form of Revolving Note
Exhibit C-3 – Form of Swing Note
Exhibit D – Form of Compliance Certificate
Exhibit E – Form of Additional Guarantor Supplement
Exhibit F – Form of Assignment and Assumption
Exhibit G – Form of Credit Commitment Increase Supplement
SCHEDULES:
Schedule 1 – Commitments
Schedule 5.2 – Subsidiaries
Schedule 7.1 – Existing Indebtedness
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AMENDED AND RESTATED Credit Agreement
This Amended and Restated Credit Agreement is entered into as August 31, 2022, by and among Bio-Techne Corporation, a Minnesota corporation (the “Borrower”), the direct and indirect Domestic Subsidiaries of Borrower from time to time party to this Agreement, as Guarantors, the several financial institutions from time to time party to this Agreement, as Lenders, and BMO Xxxxxx Bank N.A., a national banking association, as Administrative Agent and as Sustainability Structuring Agent, in each case, as provided herein. All capitalized terms used herein without definition shall have the same meanings ascribed thereto in Section 1.1.
PRELIMINARY STATEMENT
WHEREAS, Xxxxxxxx has requested, and the Lenders have agreed, to extend and continue to extend certain credit facilities on the terms and conditions of this Agreement.
WHEREAS, to effect such extensions of credit, the parties hereto have agreed to amend and restate the Existing Credit Agreement (as defined below) in its entirety to make certain changes as more fully set forth herein, which amendment and restatement shall become effective on the Closing Date;
WHEREAS, as of the date hereof, immediately before giving effect to the amendment and restatement of the Existing Credit Agreement, (i) the aggregate amount of outstanding Term Loans (as defined in the Existing Credit Agreement) is $200,000,000.00 and (ii) the aggregate Revolving Credit Commitments (as defined in the Existing Credit Agreement) is $600,000,000; and
WHEREAS, upon the effectiveness of this Agreement on the Closing Date, among other changes, (i) $200,000,000.00 of Revolving Loans shall be automatically borrowed hereunder by Xxxxxxxx and used to repay, and Administrative Agent is hereby authorized to automatically use such proceeds to repay, in full all outstanding Term Loans (as defined in the Existing Credit Agreement) existing under the Existing Credit Agreement on the Closing Date, (ii) $144,000,000.00 of Revolving Loans shall be automatically borrowed hereunder by Xxxxxxxx and used to repay, and Administrative Agent is hereby authorized to automatically use such proceeds to repay, in full all outstanding Revolving Loans (as defined in the Existing Credit Agreement) existing under the Existing Credit Agreement on the Closing Date and (iii) the aggregate Revolving Credit Commitment (as defined herein) as of the Closing Date shall be increased to $1,000,000,000.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
“Acquired Business” means the entity or assets acquired by Borrower or a Subsidiary in an Acquisition, whether before or after the date hereof.
“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the equity interests of any Person (other than a Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary) provided that Borrower or the Subsidiary is the surviving entity.
“Adjusted Term SOFR” means, with respect to any tenor, the per annum rate equal to the sum of (i) Term SOFR plus (ii) 0.10% (10 basis points); provided, that if Adjusted Term SOFR determined as provided above shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” means BMO Xxxxxx Bank N.A., a national banking association, in its capacity as Administrative Agent hereunder, and any successor in such capacity pursuant to Section 9.7.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another Person. A Person shall be deemed to control another Person for purposes of this definition if such Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other Person, whether through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise; provided that, in any event for purposes of this definition, any Person that owns, directly or indirectly, 5% or more of the securities having the ordinary voting power for the election of directors or governing body of a corporation or 5% or more of the partnership or other ownership interest of any other Person (other than as a limited partner of such other Person) will be deemed to control such corporation or other Person.
“Agreement” means this Credit Agreement, as the same may be amended, modified, restated or supplemented from time to time pursuant to the terms hereof.
“Anti-Corruption Laws” means all Laws of any jurisdiction applicable to Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act, as amended.
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“Anti-Money Laundering Laws” means any and all applicable anti-money laundering, financial recordkeeping and reporting requirements of applicable Laws, including those of the Bank Secrecy Act (as amended by the USA PATRIOT Act), the Anti-Money Laundering Act of 2020, and any applicable anti-money laundering statutes of other jurisdictions, as well as the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency and having the force of law.
“Applicable Margin” means, with respect to Loans (other than Term Loans issued pursuant to any Incremental Term Credit) and the commitment fee payable under Section 2.10, until the first Pricing Date, the rates per annum shown opposite Level I below, and thereafter from one Pricing Date to the next the Applicable Margin means the rates per annum determined in accordance with the following schedule:
Level | Total Leverage Ratio for Such Pricing Date | Applicable Margin for Base Rate Loans under Revolving Credit shall be: | Applicable Margin for SOFR Loans under Revolving Credit shall be: | Applicable Commitment Fee shall be: |
V | Greater than or equal to 2.50 to 1.00 | 0.750% | 1.750% | 0.200% |
IV | Less than 2.50 to 1.00, but greater than or equal to 2.00 to 1.00 | 0.500% | 1.500% | 0.175% |
III | Less than 2.00 to 1.00, but greater than or equal to 1.50 to 1.00 | 0.250% | 1.250% | 0.150% |
II | Less than 1.50 to 1.00, but greater than or equal to 1.00 to 1.00 | 0.125% | 1.125% | 0.125% |
I | Less than 1.00 to 1.00 | 0.00% | 1.000% | 0.100% |
For purposes hereof, the term “Pricing Date” means, for any fiscal quarter of Borrower ending on or after September 30, 2022, the date on which Administrative Agent is in receipt of Xxxxxxxx’s most recent financial statements (and, in the case of the year-end financial statements, audit report) for the fiscal quarter then ended, pursuant to Section 6.5. The Applicable Margin shall be established based on the Total Leverage Ratio for the most recently completed fiscal quarter and the Applicable Margin established on a Pricing Date shall remain in effect until the next Pricing Date. If Xxxxxxxx has not delivered its financial statements by the date such financial statements (and, in the case of the year-end financial statements, audit report) are required to be delivered under Section 6.5, until such financial statements and audit report are delivered, the Applicable Margin shall be the highest Applicable Margin (i.e., Level V shall apply). If Xxxxxxxx subsequently delivers such financial statements before the next Pricing Date, the Applicable Margin established by such late delivered financial statements shall take effect from the date of delivery until the next Pricing Date. In all other circumstances, the Applicable Margin established by such financial statements shall be in effect from the Pricing Date that occurs immediately after the end of the fiscal quarter covered by such financial statements until the next Pricing Date. Each determination of the Applicable Margin made by Administrative Agent in accordance with the foregoing shall be conclusive and binding on Borrower and the Lenders absent manifest error.
If, as a result of any restatement of or other adjustment to the financial statements of Borrower or for any other reason, Borrower or the Administrative Agent determines that (i) the
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Total Leverage Ratio as calculated by Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders promptly on demand by the Administrative Agent (or, after the occurrence of any Event of Default described in Section 8.1(j) or (k) with respect to Borrower has occurred and is continuing, automatically and without further action by the Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under any other provision of the Loan Documents. Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.
The Applicable Margin for any Term Loans issued pursuant to any Incremental Term Credit shall be as set forth in the applicable Incremental Amendment Documentation for such Incremental Term Credit.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Approved Investment Policy” means the Investment Policy dated January 28, 2010, as adopted by Xxxxxxxx, as the same may be amended, supplemented or restated from time to time with the prior written approval of the Required Lenders.
“Arrangers” means BMO Capital Markets, JPMorgan Chase Bank N.A. and PNC Capital Markets LLC.
“Asset Sale” means (a) any sale or other disposition of any Property by any Loan Party that is not in the ordinary course of business and (b) any issuance or sale by any Loan Party of any equity interests of any direct or indirect Subsidiary of Borrower, in each case, to any Person other than (x) a Loan Party or (y) in the case of any wholly owned Subsidiary of Borrower that is not a Loan Party, another wholly owned Subsidiary of Borrower that is not a Loan Party.
“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 11.10), and accepted by Administrative Agent and the Swing Line Lender, in substantially the form of Exhibit F or any other form approved by Administrative Agent and the Swing Line Lender.
“Authorized Representative” means those persons shown on the list of officers provided by Borrower pursuant to Section 4.1 or on any update of any such list provided by Borrower to Administrative Agent, or any further or different officers of Borrower so named by any Authorized Representative of Borrower in a written notice to Administrative Agent.
“Available Tenor” means, as of any date of determination and with respect to the then current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest
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period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.8(d).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” means, for any day, the rate per annum equal to the greatest of: (a) the rate of interest announced or otherwise established by the Administrative Agent from time to time as its prime commercial rate, or its equivalent for U.S. Dollar loans to borrowers located in the United States, as in effect on such day, with any change in the Base Rate resulting from a change in said prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate (it being acknowledged and agreed that such rate may not be the Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate for such day, plus (ii) 1/2 of 1.00%, and (c) Adjusted Term SOFR for a one-month Interest Period in effect two (2) U.S. Government Securities Business Days prior to such day plus 1.00%. Any change in the Base Rate due to a change in the prime rate, the quoted federal funds rates or Term SOFR, as applicable, shall be effective from and including the effective date of the change in such rate. If the Base Rate is being used as an alternative rate of interest pursuant to Section 3.4 or Section 3.5, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above, provided that if Base Rate as determined above shall ever be less than the Floor plus 1.00%, then Base Rate shall be deemed to be the Floor plus 1.00%.
“Base Rate Loan” means a Loan bearing interest at a rate specified in Section 2.2(a).
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.8.
“Benchmark Replacement” means, the first alternative set forth in the order below that can be determined by the Administrative Agent in its sole discretion,
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If the Benchmark Replacement as determined pursuant to clause (a) or (b) 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, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness or non-compliance will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or component thereof) continues to be provided on such date.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
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(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.8 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.8.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“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 Section 4975 of the Code or (c) any Person whose assets include (for purposes of the Plan Asset Regulations 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”.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“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.
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“BIS” means the United States Department of Commerce’s Bureau of Industry and Security.
“Borrower” is defined in the introductory paragraph of this Agreement.
“Borrowing” means the total of Loans of a single Type advanced, continued for an additional Interest Period, or converted from a different Type into such Type by the Lenders under the Revolving Credit on a single date and, in the case of SOFR Loans, for a single Interest Period. Borrowings of Loans are made and maintained ratably from each of the Lenders under a Credit according to their Percentages of such Credit. A Borrowing is “advanced” on the day Lenders advance funds comprising such Borrowing to Borrower, is “continued” on the date a new Interest Period for the same Type of Loans commences for such Borrowing, and is “converted” when such Borrowing is changed from one Type of Loans to the other, all as determined pursuant to Section 2.4. Borrowings of Swing Loans are made by the Swing Line Lender in accordance with the procedures set forth in Section 2.5.
“Business Day” means any day (other than a Saturday or Sunday) on which commercial banks are not authorized or required to close in New York, New York; provided that, when used in connection with any SOFR Loan, the term “Business Day” shall also exclude any day that is not a U.S. Government Securities Business Day.
“Capital Lease” means any lease of Property which in accordance with GAAP is required to be capitalized on the balance sheet of the lessee.
“Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.
“Casualty Event” means any loss of title (other than through a consensual sale, transfer or other disposition of such Property in accordance with this Agreement) or any loss of or damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any Property of any Loan Party. “Casualty Event” shall include any taking of all or any part of any real Property of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Legal Requirement, or by reason of the temporary requisition of the use or occupancy of all or any part of any real Property of any Person or any part thereof by any Governmental Authority, or any settlement in lieu thereof.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq., and any future amendments.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection
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therewith shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted or issued and (y) all requests, rules, regulations, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means any of (a) the acquisition by any “person” or “group” (as such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) at any time of beneficial ownership of 30% or more of the outstanding capital stock or other equity interests of Borrower on a fully diluted basis (other than, prior to the date of such conversion, Permitted Convertible Notes), or (b) occupation of seats (other than vacant seats) of Borrower by Persons who were neither (i) nominated by the board of directors of Borrower nor (ii) appointed by directors so nominated.
“Closing Date” means the date of this Agreement or such later Business Day upon which each condition described in Section 4 shall be satisfied or waived in a manner acceptable to Administrative Agent in its discretion.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.
“Commitment” means, as the context may require, the Revolving Credit Commitment and/or the Incremental Term Loan Commitment.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Conforming Changes” means with respect to either the use or administration of Term SOFR, Adjusted Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Applicable Margin,” the definition of “Interest Period,” the definition of “U.S. Government Securities Business Day”, the timing and frequency of determining rates and making payments of interest, the timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with Borrower, are treated as a single employer under Section 414 of the Code.
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“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).
“Credit” means any of the Revolving Credit, the Term Credit and the Incremental Term Credit.
“Credit Commitment Increase Effective Date” is defined in Section 2.16(a).
“Credit Commitment Increase Notice” is defined in Section 2.16(a).
“Credit Commitment Offered Increase Amount” is defined in Section 2.16(a).
“Credit Event” means the advancing of any Loan.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debt Issuance” means the incurrence by any Loan Party of any Indebtedness after the Closing Date (other than as permitted by Section 7.1).
“Default” means any event or condition the occurrence of which would, with the passage of time or the giving of notice, or both, constitute an Event of Default.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund any portion of its Commitments (including any Swing Loan required to be funded by it hereunder) within two (2) Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and Borrower in writing that such failure is the result of such Xxxxxx’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, or (ii) pay to the Administrative Agent, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Swing Loans) within two (2) Business Days of the date when due, (b) has notified Borrower, the Administrative Agent or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a
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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), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or Borrower, to confirm in writing to the Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide 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 permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to Borrower, Swing Line Lender and each Lender.
“Default Rate” shall have the meaning set forth in Section 2.8 hereof.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Designated Disbursement Account” means the account of Borrower maintained with Administrative Agent or its Affiliate and designated in writing to Administrative Agent as Borrower’s Designated Disbursement Account (or such other account as Borrower and Administrative Agent may otherwise agree).
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means a Subsidiary that is not a Foreign Subsidiary.
“EBIT” means, with reference to any period, Net Income for such period plus all amounts deducted in arriving at such Net Income amount in respect of (a) Interest Expense for such period, and (b) federal, state and local income taxes for such period, and adjusted for (i) Permitted Acquisition adjustments including (A) inventory step-ups associated with inventory, (B) one-time professional fees, (C) any non-recurring fees, expenses or charges including severance, restructuring charges, relocation costs and one-time compensation charges, and (D) other non-recurring extraordinary items, provided that cash adjustments under this subsection (i) are less than or equal to 15% of EBITDA, (ii) gains or losses realized upon the sale or other disposition of any asset that is not sold or disposed of in the ordinary course of business, (iii) extraordinary or non-
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recurring charges, expenses, gains or losses unrelated to Permitted Acquisitions, (iv) any gains or losses from an early extinguishment of indebtedness, and (v) all other non-cash compensation expenses from equity based compensation and non-cash charges, non-cash expenses or non-cash gains or losses in such period (excluding any such item that is non-cash during such period but the subject of a cash payment in a prior or future period). For purposes of this definition, all references to extraordinary, items, charges, expenses, gains or losses shall be determined pursuant to generally accepted accounting principles as in effect in the United States prior to giving effect to Accounting Standards Update No. 2015-01, Income Statement—Extraordinary and Unusual Items (Subtopic 225-20).
“EBITDA” means, with reference to any period, EBIT plus (a) depreciation of fixed assets, (b) amortization of intangible assets for such period, and (c) the EBITDA of the target of a Permitted Acquisition during all relevant periods.
“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.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.10(a) (subject to such consents, if any, as may be required under Section 11.10(a)(iii)); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include Borrower or any Guarantor or any of Borrower’s or such Guarantor’s Affiliates or Subsidiaries.
“Eligible Line of Business” means any business engaged in as of the date of this Agreement by Borrower or any of its Subsidiaries.
“Environmental Claim” means any investigation, notice, violation, demand, allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim (whether administrative, judicial or private in nature) arising (a) pursuant to, or in connection with an actual or alleged violation of, or liability under, any Environmental Law, (b) in connection with any Hazardous Material, (c) from any abatement, removal, remedial, investigative, corrective or response action in connection with a Hazardous Material, Environmental Law or order of a Governmental Authority or (d) from any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.
“Environmental Law” means any current or future Legal Requirement pertaining to (a) the protection of health, safety and the indoor or outdoor environment, (b) the conservation, management, protection or use of natural resources and wildlife, (c) the protection or use of surface
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water or groundwater, (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal, investigation, remediation or handling of, or exposure to, any Hazardous Material or (e) pollution (including any Release to air, land, surface water or groundwater), and any amendment, rule, regulation, order or directive issued thereunder.
“Equity Interest” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), or if such Person is a limited liability company, membership interests and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of Property of, such partnership, whether outstanding on the date hereof or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.
“Equity Issuance” means, without duplication, (i) any issuance or sale by Borrower or any other Loan Party after the Closing Date of any Equity Interests in Borrower or such other Loan Party (including any Equity Interests issued upon exercise of any warrant or option or equity-based derivative) or any warrants or options or equity-based derivatives to purchase Equity Interests in Borrower or such other Loan Party, (ii) any Preferred Stock Issuance by Borrower or any other Loan Party after the Closing Date or (iii) any contribution to the capital of Borrower or any other Loan Party after the Closing Date.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ESG” shall have the meaning set forth in Section 3.9.
“ESG Amendment” shall have the meaning set forth in Section 3.9.
“ESG Pricing Provisions” shall have the meaning set forth in Section 3.9.
“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” means any event or condition identified as such in Section 8.1.
“Excluded Swap Obligation” means any Swap Obligation of a Loan Party (other than the direct counterparty of such Swap Obligation) if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.
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“Excluded Taxes” means any of the following taxes imposed on or with respect to a Lender or required to be withheld or deducted from a payment to a Lender, (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 Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 3.7(b)) or (ii) such Lender changes its lending office, except in each case to the extent that amounts with respect to such taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) taxes attributable to such Xxxxxx’s failure to comply with Section 3.1(b) and (d) any U.S. federal withholding taxes imposed under FATCA.
“Existing Credit Agreement” means that certain Credit Agreement, dated as of August 1, 2018 (as extended, renewed, amended, restated or otherwise modified from time to time prior to the date hereof), among Bio-Techne Corporation, the Guarantors party thereto, the Lenders party thereto, and BMO Xxxxxx Bank N.A., as administrative agent thereunder.
“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) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation or official rules adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided that in no event shall the Federal Funds Rate be less than 0.00%.
“Floor” means the rate per annum of interest equal to 0.00%.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
“Final Maturity Date” means, as of any date of determination, the latest Maturity Date for any of the credit facilities or Loans then governed by this Agreement.
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“Financial Officer” means, for any Person, the chief executive officer, chief financial officer, principal accounting officer or treasurer of such Person. Unless otherwise specified, all references herein to a Financial Officer means a Financial Officer of Borrower.
“Foreign Subsidiary” means each Subsidiary which is organized under the laws of a jurisdiction other than the United States of America or any state thereof or the District of Columbia.
“Fronting Exposure” means at any time there is a Defaulting Lender, with respect to the Swing Line Lender, such Defaulting Lender’s Percentage of outstanding Swing Loans made by the Swing Line Lender other than Swing Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“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 business.
“Funds Transfer and Deposit Account Liability” means the liability of Borrower or any Guarantor owing to any of the Lenders, or any Affiliates of such Lenders, arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from the deposit accounts of Borrower and/or any Guarantor now or hereafter maintained with any of the Lenders or their Affiliates, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, and (c) any other deposit, disbursement, and cash management services, including, without limitation, treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer, merchant processing services and other cash management arrangements, in each case afforded to Borrower or any Guarantor by any of such Lenders or their Affiliates.
“GAAP” means generally accepted accounting principles as in effect in the United States as set forth from time to time 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 agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Government Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.
“Guarantee” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any indebtedness or other
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obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such indebtedness or other obligation of the payment or performance of such indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such Person securing any indebtedness or other obligation of any other Person, whether or not such indebtedness or other obligation is assumed by such Person; provided that for the purposes of this clause (b) the amount of such indebtedness will be the lesser of: (i) the fair market value of such asset at such date of determination, and (ii) the amount of such indebtedness of such other Person; provided, further, that the term “Guarantee” shall not include endorsements for collection or deposit, in each case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in the ordinary course of business (other than such obligations with respect to indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantor” and “Guarantors” each is defined in Section 6.12(a).
“Guaranty” and “Guaranties” each is defined in Section 6.12(a).
“Hazardous Material” means any substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant, contaminant or material which is hazardous, toxic or a pollutant and includes (a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or any fraction thereof), (b) any “hazardous substance” as defined in CERCLA and (c) any material classified or regulated as “hazardous,” “toxic” or a “pollutant” or words of like import pursuant to an Environmental Law.
“Hazardous Material Activity” means any activity, event or occurrence involving a Hazardous Material, including the manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal, remediation, handling of or corrective or response action to any Hazardous Material.
“Hedging Liability” means the liability of Borrower or any Guarantor to any of the Lenders, or any Affiliates of such Lenders, in respect of any interest rate, foreign currency, and/or commodity swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate, currency or commodity hedging arrangement, as Borrower or such Guarantor, as the case may be, may from time to time enter into with any one or more of the Lenders party to this Agreement or their Affiliates; provided, that Hedging Liability shall not include Excluded Swap Obligations.
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“Hostile Acquisition” means the acquisition of the capital stock or other equity interests of a Person through a tender offer or similar solicitation of the owners of such capital stock or other equity interests which has not been approved (prior to such acquisition) by resolutions of the Board of Directors of such Person or by similar action if such Person is not a corporation, or as to which such approval has been withdrawn.
“Immaterial Subsidiary” means any Subsidiary designated by Borrower in writing as an immaterial subsidiary; provided that at no time shall (i) the Total Assets (determined on a consolidated basis) of all Immaterial Subsidiaries exceed 5% of the aggregate Total Assets of Borrower and its Subsidiaries on a consolidated basis or (ii) the total revenues (determined on a consolidated basis) of all Immaterial Subsidiaries exceed 5% of the aggregate total revenues of Borrower and its Subsidiaries on a consolidated basis, in each case, as of the last day of, or for the most recently ended period of, four consecutive fiscal quarters of Borrower; provided, further, that if, as of the last day of or for any such period the combined total assets or combined total revenues of all Immaterial Subsidiaries shall have exceeded (x) 5% of the aggregate Total Assets of Borrower and its Subsidiaries on a consolidated basis or (y) 5% of the aggregate total revenues of Borrower and its Subsidiaries on a consolidated basis, as the case may be, then one or more of such Immaterial Subsidiaries shall for all purposes of the Loan Documents lose its designation as an Immaterial Subsidiary at Borrower’s direction (such direction to occur not later than five (5) Business Days after the earlier of (A) the delivery pursuant to Section 6.5(a) or (b) of financial statements of Borrower for the period during which either the amount set forth in clause (x) or (y) shall first have been exceeded and (B) in the event that as a result of an acquisition, disposition or transfer of material assets (including equity interests), either the amount set forth in clause (x) or (y) shall first have been exceeded, the date of such acquisition, disposition or transfer), or, in the absence of such direction, in descending order based on the amounts (determined on a consolidated basis for such Subsidiary and its Subsidiaries) of their total assets or total revenues, as the case may be, until such excess shall have been eliminated.
“Incremental Amendment Documentation” shall have the meaning set forth in Section 2.16(a).
“Incremental Term Credit” means the credit facility for making Incremental Term Loans described in Section 2.16 hereof.
“Incremental Term Loan Commitment” means any Lender that agrees to make a Term Loan to Borrower, from time to time, after the Closing Date pursuant to Section 2.16 hereof in an aggregate principal or face amount to be mutually agreed and set forth in the definitive documentation for such additional Term Loan.
“Indebtedness for Borrowed Money” means for any Person (without duplication) (a) all indebtedness created, assumed or incurred in any manner by such Person representing money borrowed (including by the issuance of debt securities), (b) all indebtedness for the deferred purchase price of property or services (other than trade accounts payable arising in the ordinary course of business), (c) all indebtedness secured by any Lien upon Property of such Person, whether or not such Person has assumed or become liable for the payment of such indebtedness, (d) all Capitalized Lease Obligations of such Person, and (e) all obligations of such Person on or
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with respect to letters of credit, bankers’ acceptances and other extensions of credit whether or not representing obligations for borrowed money.
“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” shall have the meaning set forth in Section 11.14(a).
“Interest Coverage Ratio” means, with reference to any period, the ratio of (a) EBIT of Borrower and its Subsidiaries for the most recently ended four fiscal quarters of Borrower to (b) cash Interest Expense of Borrower and its Subsidiaries for the same previous four fiscal quarters of Borrower and its Subsidiaries.
“Interest Expense” means, with reference to any period, the sum of all interest charges (including imputed interest charges with respect to Capitalized Lease Obligations and all amortization of debt discount, expense and other fees and charges associated with indebtedness) of Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
“Interest Payment Date” means (a) with respect to any SOFR Loan, either (i) the last day of each Interest Period with respect to such SOFR Loan and on the maturity date or (ii) in the case of a SOFR Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing, (b) with respect to any Base Rate Loan (other than Swing Loans), the last day of every calendar quarter and on the maturity date, and (c) as to any Swing Loan, (i) bearing interest by reference to the Base Rate, the last day of every calendar quarter, and on the maturity date and (ii) bearing interest by reference to the Swing Line Lender’s Quoted Rate, the last day of the Interest Period with respect to such Swing Loan, and on the maturity date.
“Interest Period” means the period commencing on the date a Borrowing of SOFR Loans or Swing Loans (bearing interest at the Swing Line Lender’s Quoted Rate) is advanced, continued, or created by conversion and ending (a) in the case of SOFR Loans, one (1), three (3) or six (6) months thereafter and (b) in the case of Swing Loans bearing interest at the Swing Line Lender’s Quoted Rate, on the date one (1) to five (5) Business Days thereafter as mutually agreed by the applicable Borrower and the Swing Line Lender; provided, however, that:
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“KPIs” shall have the meaning set forth in Section 3.9.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, 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, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Legal Requirement” means any treaty, convention, statute, law, common law, rule, regulation, ordinance, license, permit, governmental approval, injunction, judgment, order, consent decree or other requirement of any Governmental Authority, whether federal, state, or local.
“Lenders” means and includes BMO Xxxxxx Bank N.A. and the other financial institutions from time to time party to this Agreement, including each assignee Lender pursuant to Section 11.10 and, unless the context otherwise requires, the Swing Line Lender.
“Lending Office” is defined in Section 3.7.
“Lien” means any mortgage, lien, security interest, pledge, charge, hypothec, deemed trust, right or encumbrance of any kind in respect of any Property, including the interests of a vendor or lessor under any conditional sale, Capital Lease or other title retention arrangement; provided, however, that financing statements filed in connection with true leases or operating leases shall not constitute a “Lien” for purposes of this Agreement.
“Loan” means any Term Loan, Revolving Loan or Swing Loan, whether outstanding as a Base Rate Loan or SOFR Loan or otherwise, each of which is a “Type” of Loan hereunder.
“Loan Documents” means this Agreement, the Notes (if any), the Guaranties, and each other instrument or document to be delivered hereunder or thereunder or otherwise in connection therewith.
“Loan Parties” means Borrower and each Guarantor, collectively.
“Mandate Letter” means the Mandate Letter and Term Sheet, dated as of July 19, 2022, between the Administrative Agent and Xxxxxxxx.
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“Material Agreement” means any agreement or contract to which Borrower or any of its Subsidiaries is a party the termination of which could reasonably be expected to result in a Material Adverse Effect.
“Material Adverse Effect” means (a) a material adverse change in, or material adverse effect upon, the operations, business, Property, condition (financial or otherwise) or prospects of Borrower or of Borrower and its Subsidiaries taken as a whole, (b) a material impairment of the ability of Borrower or any Subsidiary to perform its material obligations under any Loan Document or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against Borrower or any Subsidiary of any Loan Document or the rights and remedies of Administrative Agent and the Lenders thereunder.
“Maturity Date” means (a) with respect to the Revolving Credit, the Revolving Credit Termination Date, (b) with respect to the Term Credit, the Term Loan Maturity Date and (c) with respect to any other credit facility, such maturity date as determined in accordance with this Agreement.
“MFN Margin” is defined in Section 2.16(d).
“Moody’s” means Xxxxx’x Investors Service, Inc. (or any successor thereto).
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds” means:
(a) with respect to any Asset Sale (other than any issuance or sale of Equity Interests), an amount equal to the proceeds thereof in the form of cash and cash equivalents (including, but not limited to, any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable, or by the sale, transfer or other disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received) received by any Loan Party (including cash proceeds subsequently received (as and when received by any Loan Party) in respect of non-cash consideration initially received) net of (i) selling expenses (including brokers’ fees or commissions, legal, investment banking, accounting and other professional and transactional fees, transfer and similar taxes and Borrower’s good faith estimate of income taxes paid or payable in connection with such sale (after taking into account any available tax credits or deductions and any tax sharing arrangements)), (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by any Loan Party associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve (other than as a result of payments made thereunder), such amounts shall constitute Net Cash Proceeds), and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for Borrowed Money that is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under Section 7.2 at the time of such sale) and which is repaid with such
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proceeds (other than any such Indebtedness for Borrowed Money assumed by the purchaser of such properties);
(b) with respect to any (i) Debt Issuance, (ii) Equity Issuance or (iii) other issuance or sale of Equity Interests by any Loan Party or any of their respective Subsidiaries, an amount equal to the cash proceeds thereof received by any Loan Party, net of fees, commissions, costs and other expenses incurred in connection therewith; and
(c) with respect to any Casualty Event, an amount equal to the cash insurance proceeds, condemnation awards and other compensation received by any Loan Party in respect thereof, net of all costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event.
“Net Income” means, with reference to any period, the net income (or net loss) of Borrower and its Subsidiaries for such period computed on a consolidated basis in accordance with GAAP; provided that there shall be excluded from Net Income (a) the net income (or net loss) of any Person accrued prior to the date it becomes a Subsidiary of, or has merged into or consolidated with, Borrower or another Subsidiary, and (b) the net income (or net loss) of any Person (other than a Subsidiary) in which Borrower or any of its Subsidiaries has an equity interest in, except to the extent of the amount of dividends or other distributions actually paid to Borrower or any of its Subsidiaries during such period.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Lenders in accordance with the terms of Section 11.11 and (ii) has been approved by the Required Lenders.
“Non-Defaulting Lender” means at any time, each Lender that is not a Defaulting Lender at such time.
“Note” and “Notes” each is defined in Section 2.9.
“Obligations” means all obligations of Borrower to pay principal and interest on the Loans, all fees and charges payable hereunder, and all other payment obligations of Borrower or any of its Subsidiaries arising under or in relation to any Loan Document, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired; provided, that Obligations shall not include Excluded Swap Obligations.
“OFAC” means the United States Department of the Treasury’s Office of Foreign Assets Control.
“OFAC Event” means the event specified in Section 6.9.
“OFAC SDN List” means the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC.
“Other Connection Taxes” means with respect to any Lender, taxes imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such tax (other
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than connections arising from 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 that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.7(b)).
“Participant Register” as defined in Section 11.9.
“PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all of its functions under ERISA.
“Percentage” means (i) for each Revolving Lender, the percentage of the total Revolving Credit Commitments represented by such Xxxxxx’s Revolving Credit Commitment and (ii) for each Term Loan Lender, the percentage of the total outstanding Term Loans represented by such Term Loan Lender’s outstanding Term Loans; provided that in the case of Section 2.15 when a Defaulting Lender shall exist, “Percentage” shall mean the percentage of the total Commitments (disregarding any Defaulting Xxxxxx’s Commitment) represented by such Xxxxxx’s Commitment.
“Permitted Acquisition” means any Acquisition with respect to which all of the following conditions shall have been satisfied:
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“Permitted Convertible Notes” means any notes issued by Borrower that are convertible solely into common stock of Borrower (or converted into cash in lieu of fractional shares); provided that (a) the stated final maturity thereof shall be no earlier than 91 days after the Final Maturity Date, and shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the 91st day after the Final Maturity Date (it being understood that a repurchase of such notes on account of the occurrence of a “fundamental change” shall not be deemed to constitute a change in the stated final maturity thereof), (b) such notes shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default or a “fundamental change”) prior to the 91st day after the Final Maturity Date, (c) the terms, conditions and covenants of such notes shall be such as are typical and customary for notes of such type (as determined by the Board of Directors of Borrower in good faith), (d) no Subsidiary that is not a Loan Party shall guarantee obligations of Borrower thereunder, and each such guarantee shall provide for the release and termination thereof, without action by any Person, upon any release and termination of the Guaranty by such Subsidiary, and (e) the obligations in respect thereof (and any guarantee thereof) shall not be secured by any Lien on any asset of Borrower or any Subsidiary.
“Permitted Senior Notes” means any senior unsecured notes or subordinated notes, or any combination of the foregoing, issued by Borrower, provided that (a) with respect to subordinated notes only, such notes are subordinated in right of payment to the Obligations under the Loan Documents on terms customary at the time of the issuance of such notes for high yield subordinated debt securities issued in a public offering, (b) the stated final maturity of any such notes shall be no earlier than 91 days after the Final Maturity Date, and shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the 91st day after the Final Maturity Date, (c) any such notes shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default or a “fundamental change”) prior to the 91st day after the Final Maturity Date, (d) the terms, conditions and covenants of any such notes shall be such as are typical and customary for notes of such type (as determined by the Board of Directors of Borrower in good faith), (e) no Subsidiary that is not a Loan Party shall guarantee obligations of Borrower thereunder, and each such guarantee (i) shall provide for the release and termination thereof, without action by any Person, upon any release and termination of the guarantee by such Subsidiary and (ii) with respect to guarantees of the subordinated notes only, shall be subordinated to the guarantee by such Subsidiary of the Obligations hereunder, and under any Loan Document, on terms no less favorable to the Lenders than the subordination provisions of such notes, and (f) the obligations in respect of any such notes (including any guarantee thereof) shall not be secured by any Lien on any asset of Borrower or any Subsidiary.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, joint venture, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof.
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“Plan” means any employee pension benefit plan covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 or Section 430 of the Code or Section 302 or 303 of ERISA that either (a) is maintained by a member of the Controlled Group for employees of a member of the Controlled Group or with respect to which any member of the Controlled Group has any liability or (b) is maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group (i) is then making or accruing an obligation to make contributions or has any liability or (ii) has within the preceding five plan years made contributions, or has been obligated to make contributions, or has any liability.
“Plan Asset Regulations” means 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA, as amended from time to time.
“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.
“Premises” means the real property owned or leased by Borrower or any Subsidiary.
“Pro Rata Share” means, as for each Lender, its Percentage.
“Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed property owned by such Person whether or not included in the most recent balance sheet of such Person and its subsidiaries under GAAP.
“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).
“Qualified Acquisition” means an acquisition that (a) is permitted under Section 7.3 and (b) upon the consummation thereof, is designated by a Financial Officer of Borrower in writing to the Administrative Agent to be a Qualified Acquisition; provided that the aggregate consideration (whether in the form of cash, securities, goodwill, or otherwise) with respect to such acquisition shall not be less than $250,000,000.
“Qualified Acquisition Period” means the fiscal quarter in which a Qualified Acquisition is consummated and the three consecutive fiscal quarters immediately succeeding such fiscal quarter; provided that another Qualified Acquisition Period shall not commence until the current Qualified Acquisition Period shall have terminated and there shall have been at least one fiscal quarter when there was no Qualified Acquisition Period in effect.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulation promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
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“RCRA” means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq., and any future amendments.
“Refinancing Indebtedness” means, in respect of any indebtedness (the “Original Indebtedness”), any indebtedness that extends, renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount no greater than accrued and unpaid interest with respect to such Original Indebtedness and premiums, fees and expenses payable in connection with such extension, renewal or refinancing; (b) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness, and such stated final maturity shall not be subject to any conditions (other than conditions that were applicable to the Original Indebtedness) that could result in such stated final maturity occurring on a date that precedes the stated final maturity of such Original Indebtedness; (c) such Refinancing Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default or a change in control or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such Original Indebtedness) prior to the earlier of (i) the maturity of such Original Indebtedness and (ii) the date 180 days after the Final Maturity Date, provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such Refinancing Indebtedness shall be permitted so long as the weighted average life to maturity of such Refinancing Indebtedness shall be at least as long as the weighted average life to maturity of such Original Indebtedness remaining as of the date of such extension, renewal or refinancing; (d) such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a guarantee) of any Subsidiary that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness; (e) if such Original Indebtedness (including any Guarantee thereof) shall have been subordinated to the Obligations, such Refinancing Indebtedness (including any Guarantee thereof) shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders; and (f) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured such Original Indebtedness (or would have been required to secure such Original Indebtedness pursuant to the terms thereof) or, in the event Liens securing such Original Indebtedness shall have been contractually subordinated to any Lien securing the Obligations, by any Lien that shall not have been contractually subordinated to at least the same extent.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migration, dumping, or disposing into the indoor or outdoor environment, including the abandonment or discarding of barrels, drums, containers, tanks or other receptacles containing or previously containing any Hazardous Material.
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“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Required Lenders” means, as of the date of determination thereof, Lenders whose aggregate outstanding Loans and Unused Revolving Credit Commitments constitute more than 50% of the sum of the total outstanding Loans and Unused Revolving Credit Commitments of the Lenders, subject to a minimum of two (2) Lenders not constituting Defaulting Lenders at any time that there are two or more Lenders not constituting Defaulting Lenders. The Loans and Unused Revolving Credit Commitments of any Defaulting Lender shall be disregarded, so long as such Lender remains a Defaulting Lender, in determining Required Lenders at any time.
“Required Revolving Lenders” means, as of the date of determination thereof, Lenders whose aggregate outstanding Revolving Loans and Unused Revolving Credit Commitments constitute more than 50% of the sum of the total outstanding Revolving Loans and Unused Revolving Credit Commitments of the Lenders, subject to a minimum of two (2) Lenders not constituting Defaulting Lenders at any time that there are two or more Revolving Lenders not constituting Defaulting Lenders. The Revolving Loans and Unused Revolving Credit Commitments of any Defaulting Lender who is a Revolving Lender shall be disregarded, so long as such Lender remains a Defaulting Lender, in determining Required Revolving Lenders at any time.
“Required Term Lenders” means, at any time, Term Loan Lenders holding more than 50% of the outstanding Term Loans, subject to a minimum of two (2) Lenders not constituting Defaulting Lenders at any time that there are two or more Term Loan Lenders not constituting Defaulting Lenders. The outstanding Term Loans of any Defaulting Lender who is a Term Loan Lender shall be disregarded, so long as such Lender remains a Defaulting Lender, in determining Required Term Lenders at any time.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Revolving Credit” means the credit facility for making Revolving Loans and Swing Loans described in Sections 2.1 and 2.5.
“Revolving Credit Commitment” means, as to any Lender, the obligation of such Lender to make Revolving Loans and to participate in Swing Loans issued for the account of Borrower hereunder in an aggregate principal or face amount at any one time outstanding not to exceed the amount set forth opposite such Xxxxxx’s name on Schedule 1 attached hereto and made a part hereof, as the same may be reduced or modified at any time or from time to time pursuant to the terms hereof. Subject to increase pursuant to the terms and subject to the conditions set forth in Section 2.16, Borrower and the Lenders acknowledge and agree that the Revolving Credit Commitments of the Lenders aggregate $1,000,000,000 on the date hereof.
“Revolving Credit Commitment Re-Allocation Date” is defined in Section 2.16(c).
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“Revolving Credit Termination Date” means August 31, 2027, or such earlier date on which the Revolving Credit Commitments are terminated in whole pursuant to Section 2.13, 8.2 or 8.3.
“Revolving Lender” means any Lender with a Revolving Credit Commitment.
“Revolving Loan” is defined in Section 2.1 and, as so defined, includes a Base Rate Loan or a SOFR Loan, each of which is a “Type” of Revolving Loan hereunder.
“Revolving Note” is defined in Section 2.9.
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc. (or any successor thereto).
“Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any Sanctions (including, as of the date of this Agreement, Cuba, Iran, North Korea, Syria and the Donetsk People’s Republic, Luhansk People’s Republic and Crimea regions of Ukraine).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the U.S. Government (including, without limitation, OFAC and the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom or any European Union member state or is otherwise the subject or target of any sanctions administered or enforced by any of the foregoing, (b) any Person located, operating, organized or resident in a Sanctioned Country or (c) any Person owned, whether individually or in the aggregate, directly or indirectly, 50% or more by, or controlled by, or acting or purporting to act on behalf of, any such Person or Persons described in the foregoing clauses (a) or (b).
“Sanctions” means any and all applicable Laws relating to terrorism, economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC, BIS or the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member or Her Majesty’s Treasury of the United Kingdom.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Loan” means a Loan bearing interest based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate.”
“Solvency Certificate” means a solvency certificate signed by a Financial Officer in form and substance reasonably acceptable to the Administrative Agent.
“Solvent” means, with respect to any Person as of any date of determination, that, as of such date, (a) the sum of the debt and liabilities (including subordinated and contingent liabilities) of Borrower and its Subsidiaries, taken as a whole, does not exceed the fair value of the present
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assets of Borrower and its Subsidiaries, taken as a whole, (b) the present fair saleable value of the assets of Borrower and its Subsidiaries, taken as a whole, is greater than the total amount that will be required to pay the probable debt and liabilities (including subordinated and contingent liabilities) of Borrower and its Subsidiaries as they become absolute and matured, (c) Borrower and its Subsidiaries, taken as a whole, have not incurred, or do not believe that they will incur, debts or other liabilities, including current obligations, beyond their ability to pay such debt as they mature in the ordinary course of business and (d) the capital of Borrower and its Subsidiaries, taken as a whole, is not unreasonably small to engage in the business of Borrower and its Subsidiaries, taken as a whole. In computing the amount of contingent liabilities at any time, such liabilities shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“Subordinated Debt” means Indebtedness for Borrowed Money which is subordinated in right of payment to the prior payment of the Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability pursuant to subordination provisions approved in writing by Administrative Agent and is otherwise pursuant to documentation that is, which is in an amount that is, and which contains interest rates, payment terms, maturities, amortization schedules, covenants, defaults, remedies and other material terms that are, in each case, in form and substance reasonably satisfactory to Required Lenders.
“Subsidiary” means, as to any particular parent corporation or organization, any other corporation or organization more than 50% of the outstanding Voting Stock of which is at the time directly or indirectly owned by such parent corporation or organization or by any one or more other entities which are themselves subsidiaries of such parent corporation or organization. Unless otherwise expressly noted herein, the term “Subsidiary” means a Subsidiary of Borrower or of any of its direct or indirect Subsidiaries.
“Sustainability Assurance Provider” has the meaning assigned to such term in Section 3.9(c).
“Sustainability Structuring Agent” means BMO Xxxxxx Bank N.A., acting in its capacity as sustainability structuring agent in respect of the credit facilities established hereunder, or, if BMO Xxxxxx Bank N.A. shall no longer consent in its sole discretion to act in such capacity, one of the Lenders and/or one Affiliate of a Lender, as selected by the Company in consultation with the Administrative Agent to act as a sustainability structuring agent in respect of the credit facilities established hereunder; provided that such Person agrees in its sole discretion to act in such capacity.
“Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swing Line” means the credit facility for making one or more Swing Loans described in Section 2.5.
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“Swing Line Lender” means BMO Xxxxxx Bank N.A., acting in its capacity as the Lender of Swing Loans hereunder, or any successor Xxxxxx acting in such capacity appointed pursuant to Section 11.10.
“Swing Line Lender’s Quoted Rate” is defined in Section 2.5(c).
“Swing Line Sublimit” means $20,000,000, as reduced pursuant to the terms hereof.
“Swing Loan” and “Swing Loans” each is defined in Section 2.5.
“Swing Note” is defined in Section 2.9.
“Taxes” means present or future taxes, levies, imposts, duties, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax, and penalties applicable thereto.
“Term Loan” means an Incremental Term Loan made pursuant to Section 2.16 and the applicable Incremental Amendment Documentation.
“Term Loan Lender” means each Lender with an Incremental Term Loan Commitment pursuant to Section 2.16, that has issued Term Loans pursuant to any Incremental Term Credit or that has been assigned, in accordance with Section 11.10, outstanding Term Loans hereunder pursuant to in an Assignment and Assumption in the form of Exhibit F hereto or other documentation or record (as such term is defined in Section 9-102(a)(70) of the New York Uniform Commercial Code), pursuant to which such Lender shall have assumed such outstanding Term Loans as if it had been a Lender hereunder on the Closing Date.
“Term Loan Maturity Date” means, for any Term Loans, the earlier of (i) the final maturity date set forth for such Term Loans in the applicable Incremental Amendment Documentation therefor and (ii) such earlier date on which the Revolving Credit Commitments are terminated in whole pursuant to Section 2.13, 8.2 or 8.3.
“Term Note” is defined in Section 2.9.
“Term SOFR” means, for the applicable tenor, the Term SOFR Reference Rate on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to (a) in the case of SOFR Loans, the first day of such applicable Interest Period, or (b) with respect to Base Rate, such day of determination of the Base Rate, in each case as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
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“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the per annum forward-looking term rate based on SOFR.
“Total Assets” means all assets of Borrower and its Subsidiaries determined in accordance with GAAP and as set forth in the consolidated balance sheet of Borrower and its Subsidiaries as delivered pursuant to Section 6.5(b).
“Total Funded Debt” means, at any time the same is to be determined, (a) the sum (but without duplication) of the principal portion of (i) all Indebtedness for Borrowed Money of Borrower and its Subsidiaries at such time, and (ii) all Indebtedness for Borrowed Money of any other Person which is directly or indirectly guaranteed by Borrower or any of its Subsidiaries or which Borrower or any of its Subsidiaries has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which Borrower or any of its Subsidiaries has otherwise assured a creditor against loss, minus (b) the aggregate amount of domestic cash and domestic cash equivalents (in each case free and clear of all Liens other than nonconsensual Liens permitted under Section 7.2) included in the consolidated balance sheet of Borrower and its Domestic Subsidiaries as of such date.
“Total Leverage Ratio” means the ratio of Total Funded Debt of Borrower and its Subsidiaries as of the end of the most recent fiscal quarter to the EBITDA of Borrower and its Subsidiaries for the most recently ended four fiscal quarters, it being understood that to the extent any acquisition shall have occurred during such period, the Total Leverage Ratio shall be calculated as if such acquisition occurred at the beginning of such period.
“Type” means (i) with respect to Loans, (a) whether such Loan is a Term Loan, Revolving Loan or Swing Loan and (b) whether such Loan is a SOFR Loan or a Base Rate Loan or (ii) with respect to Commitment increase requests pursuant to Section 2.16 hereof, whether such increase request is a request for additional Revolving Credit Commitments or Incremental Term Loan Commitments.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
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“Unfunded Vested Liabilities” means, for any Plan at any time, the amount (if any) by which the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the fair market value of all Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.
“United States Bankruptcy Code” means Title 11 of the United States Code, as amended, or any similar federal or state law in the relief of debtors.
“Unused Revolving Credit Commitments” means, at any time, the difference between the Revolving Credit Commitments then in effect and the aggregate outstanding principal amount of Revolving Loans. Amounts outstanding under the Swing Loans shall not be considered outstanding for purposes of the calculation of the revolving credit commitment fee pursuant to Section 2.10(a).
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as amended or reauthorized from time to time.
“U.S. Dollars” and “$” each means the lawful currency of the United States of America.
“U.S. Government Securities Business Days” 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.
“Voting Stock” of any Person means equity interests of any class or classes (however designated) having ordinary power for the election of directors or other similar governing body of such Person, other than stock or other equity interests having such power only by reason of the happening of a contingency.
“Welfare Plan” means a “welfare plan” as defined in Section 3(1) of ERISA.
“Wholly-Owned Subsidiary” means a Subsidiary of which all of the issued and outstanding shares of capital stock (other than directors’ qualifying shares as required by Law) or other equity interests are owned by Borrower and/or one or more Wholly-Owned Subsidiaries within the meaning of this definition.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
“Withholding Agent” means any Loan Party or the Administrative Agent, as applicable.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect
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to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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stated principal amount as a result of application of Financial Accounting Standards Board Accounting Standards Update No. 2015-03, it being agreed that indebtedness shall at all times be valued at the full stated principal amount thereof and (D) without giving effect to any change to GAAP occurring before or after June 30, 2017, as a result of the adoption of Financial Accounting Standards Board Accounting Standards Codification 842 (or any other Accounting Standards Codification having a similar result or effect and related interpretations), or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on June 30, 2017, it being further agreed that all liabilities under or in respect of any lease (whether now outstanding or at any time hereafter entered into or incurred) that, under GAAP as in effect on June 30, 2017, would be accrued as an operating lease expense and would not constitute a Capitalized Lease Obligation shall continue to be treated as operating lease expense in accordance with GAAP as in effect on June 30, 2017, and shall not constitute a Capital Lease Obligation, in each case, for purposes of all computations of amounts and ratios referred to herein, including under Section 7.
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which case no notice shall be required), Borrower shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the principal amount of all amounts overdue or outstanding at a rate per annum equal to (i) with respect to any Loan, a rate per annum equal to 2.00% per annum above the interest rate that is or would be applicable from time to time to such Loan pursuant to Section 2.2(a) or Section 2.2(b), as applicable, and (ii) with respect to any other amount, a rate per annum equal to 2.00% per annum above the rate that would be applicable to such other amount (the “Default Rate”); provided, that in the absence of acceleration, the implementation of the Default Rate pursuant to this Section shall be made at the election of Administrative Agent, acting at the request or with the consent of the Required Lenders, with written notice to Borrower; provided further that if any Event of Default pursuant to Section 8.1(j) or Section 8.1(k) shall have occurred, all interest, fees, or other amounts owed hereunder shall thereafter automatically bear interest at a rate per annum equal to the Default Rate. While any Event of Default exists or after acceleration, interest shall be paid on demand of Administrative Agent at the request or with the consent of the Required Lenders.
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Anything contained herein to the contrary notwithstanding (including Section 2.7(b)), all payments and collections received in respect of the Obligations, Funds Transfer and Deposit
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Account Liability and Hedging Liability by Administrative Agent or any of the Lenders after acceleration or the final maturity of the Obligations or termination of the Commitments as a result of an Event of Default shall be remitted to Administrative Agent and distributed as follows:
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Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Borrower and the Administrative Agent, at the time or times reasonably requested by Borrower or the Administrative Agent and at the time or times prescribed by applicable Laws, such properly completed and executed documentation reasonably requested by Borrower or the Administrative Agent or prescribed by applicable Laws as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or the Administrative Agent as will enable Borrower or the
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Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.1(b)(i) and (iii) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting the generality of the foregoing:
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then, upon the demand of such Lender, Borrower shall pay to such Lender such amount as will reimburse such Lender for such actual loss, cost or expense. If any Lender makes such a claim for compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a certificate setting forth the amount of such loss, cost or expense in reasonable detail (including an explanation of the basis for and the computation of such loss, cost or expense) and the amounts shown on such certificate shall be conclusive and binding on Borrower absent manifest error.
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the Borrower (which notice shall specify the extent of such unlawfulness (e.g., whether such unlawfulness applies to SOFR Loans generally or only to Interest Periods of a particular duration)) and after the giving of such notice (i) such Lender’s obligations to make or maintain SOFR Loans under this Agreement shall be suspended until it is no longer unlawful for such Lender to make or maintain SOFR Loans and (ii) each outstanding SOFR Loan of such Lender shall, on the last day of the Interest Period therefor (unless such Loan may be continued as a SOFR Loan for the full duration of any requested new Interest Period without being unlawful) or on such earlier date as such Lender shall specify is necessary pursuant to the applicable Change in Law, convert to a Base Rate Loan, which shall be determined without reference to clause (c) of the definition of “Base Rate”.
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and the result of any of the foregoing shall be to increase the cost to such Lender or such other recipient of making, converting to, continuing or maintain any Loan or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender in accordance with clause (c) below, other recipient, the Borrower will pay to such Lender or other recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other recipient, as the case may be, for such additional costs incurred or reduction suffered.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.
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Each request for a Borrowing hereunder shall be deemed to be a representation and warranty by Borrower on the date on such Credit Event as to the facts specified in subsections (a) through (d), inclusive, of this Section; provided, that the Lenders may continue to make advances under the Revolving Credit, in the sole discretion of the Lenders with Revolving Credit Commitments, notwithstanding the failure of Borrower to satisfy one or more of the conditions set forth above and any such advances so made shall not be deemed a waiver of any Default or Event of Default or other condition set forth above that may then exist.
Borrower represents and warrants to Administrative Agent and the Lenders as follows:
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Borrower shall use the proceeds of the Revolving Credit after the Closing Date for its general working capital purposes, for Permitted Acquisitions and for such other legal and proper purposes as are consistent with all applicable laws. Borrower shall use the proceeds of any Term Loans as set forth in the applicable Incremental Amendment Documentation therefor. Neither Borrower nor any Subsidiary is engaged, principally or as one of its important activities, in the business of purchasing or carrying margin stock or in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Loan or any other extension of credit made hereunder will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock. Margin stock (as hereinabove defined) constitutes less than 25% of the assets of Borrower and its Subsidiaries which are subject to any limitation on sale, pledge or other restriction hereunder.
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performance by Borrower or any Subsidiary of any Loan Document, except for such approvals which have been obtained prior to the date of this Agreement and remain in full force and effect.
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expenses (including reasonable attorneys’ fees, expenses and disbursements) arising in connection with any such claim, demand, or liability.
Xxxxxxxx agrees that, so long as any credit is available to or in use by Borrower hereunder, except to the extent compliance in any case or cases is waived in writing pursuant to the terms of Section 11.11:
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Administrative Agent, each Lender and each of their duly authorized representatives such information respecting the business and financial condition of Borrower and each Subsidiary as Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to Administrative Agent and the Lenders:
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Information required to be delivered or forwarded pursuant to this Section shall be deemed to have been delivered or forwarded if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on the electronic data room or other electronic platform to which the Lenders have been granted access or shall be publicly available on the website of the Securities and Exchange Commission at xxxx://xxx.xxx.xxx or on the website of Borrower. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.
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Notwithstanding anything herein to the contrary, if any Subsidiary that is not a Guarantor (including any Immaterial Subsidiary or any Foreign Subsidiary) provides a Guarantee in respect of any Permitted Convertible Notes, Permitted Senior Notes or any other Indebtedness For Borrowed Money having an outstanding principal amount in excess of $25,000,000 of Borrower or any other Subsidiary, Borrower shall cause such Subsidiary to, concurrent with providing the Guarantee in respect of such indebtedness, become a Guarantor in accordance with this Section 6.12; provided that such Subsidiary shall not be required to comply with this Section 6.12 if the Administrative Agent and Borrower determine that the cost or burden or other consequences (including tax consequences) of compliance therewith is excessive in relation to the practical benefit afforded thereby.
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In determining the amount of investments, acquisitions, loans, and advances permitted under this Section, investments and acquisitions shall always be taken at the original cost thereof (regardless of any subsequent appreciation or depreciation therein), and loans and advances shall be taken at the principal amount thereof then remaining unpaid.
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Notwithstanding anything herein or any other Loan Document to the contrary, no Loan Party that is a limited liability company may divide itself into two or more limited liability companies (pursuant to a “plan of division” as contemplated under the Delaware Limited Liability Company Act or otherwise) without the prior written consent of the Administrative Agent, and in the event that any Loan Party that is a limited liability company divides itself into two or more limited liability companies (with or without the prior consent of the Administrative Agent as required above), any limited liability companies formed as a result of such division (including all series thereof) shall be required to comply with the obligations set forth in this Agreement and the other Loan Documents and the further assurances obligations included in any Loan Document (including Section 6.12 above) and become a Borrower or Guarantor (as required by Administrative Agent).
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anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or, except as otherwise authorized by OFAC or BIS, in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto or reasonably could cause any party hereto to become a Sanctioned Person.
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hereunder and whether such credit facilities meet its own criteria or expectations with regard to environmental impact and/or sustainability performance.
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Agent); provided that the resignation of a Swing Line Lender shall not take effect until the appointment and acceptance of such successor Swing Line Lender. Upon the acceptance of a successor Swing Line Lender, (x) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swing Line Lender and (y) the retiring Swing Line Lender shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents. If the Swing Line Xxxxxx resigns, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Loans or fund risk participations in outstanding Swing Line Loans hereunder.
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any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
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otherwise, each Guarantor’s obligations under this Section 10 with respect to such payment shall be reinstated at such time as though such payment had become due but had not been made at such time.
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damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, other than to the extent that such damages are determined by a court of the competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.
to Borrower or any Guarantor: | to Administrative Agent: |
Bio-Techne Corporation | BMO Xxxxxx Bank N.A. |
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With a copy (not constituting notice) to: | With a copy (not constituting notice) to: |
Xxxxxxxxxx & Xxxxx, P.A. | Xxxxx Day |
Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Section or in the relevant Administrative Questionnaire and a confirmation of such facsimile has been received by the sender, (ii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid, (iii) if by email, when delivered (all such notices and communications sent by email shall be deemed delivered upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgment)), or (iv) if given by any other means, when delivered at the addresses specified in this Section or in the relevant Administrative Questionnaire; provided that any notice given pursuant to Section 2 shall be effective only upon receipt.
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of the Loan Documents, except that such agreement may provide that such Lender will not agree to any modification, amendment or waiver of the Loan Documents that would reduce the amount of or postpone any fixed date for payment of any Obligation in which such participant has an interest. Any party to which such a participation has been granted shall have the benefits of Sections 3.1 and 3.2 (subject to the requirements and limitations therein, including the requirements of Section 3.1(b), it being understood that the documentation required under Section 3.1(b) shall be delivered to the participating Lender), Section 3.4 and Section 3.6. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Xxxxxxxx, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 11.10(b), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.1, 3.2, 3.3, 3.6, 11.4 and 11.14 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.9.
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Notwithstanding anything to the contrary herein, (1) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders) and such Defaulting Lender’s Commitments shall be excluded for purposes of determining “Required Lenders”, except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender, (2) if the Administrative Agent and Borrower acting together identify any ambiguity, omission, mistake, error or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement, (3) guarantees, collateral security documents and related documents executed by Borrower or any other Loan Party in connection with this Agreement may be in a form reasonably acceptable to the Administrative Agent and may be amended, supplemented or waived without the consent of any Lender if such amendment, supplement or waiver is delivered in order to (x) comply with local law or advice of local counsel, (y) cure ambiguities, omissions, mistakes, errors or defects or (z) cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents, (4) Borrower, the Administrative Agent, the Sustainability Structuring Agent and the Required Lenders may, without the consent of any other Person, effect the ESG Amendment in accordance with the terms of Section 3.9 and (5) Borrower and the Administrative Agent may, without the input or consent of any other Lender, effect amendments to this Agreement and the other Loan Documents as may be necessary in the reasonable opinion of Xxxxxxxx and the Administrative Agent to effect the provisions of Section 2.16 (including, without limitation, to make amendments to any outstanding tranche of Term Loans to permit any Incremental Term Loan Commitments and Term Loans incurred under Section 2.16 to be “fungible” (including, without limitation, for purposes of the Code) with such tranche of Term Loans, including, without limitation, increases in the Applicable Margin or any fees payable to such outstanding tranche of Term Loans or providing such outstanding tranche of Term Loans with the benefit of any call protection or covenants that are applicable to the proposed Incremental Term Loan Commitments or Term Loans; provided that any such amendments or modifications to such outstanding tranche of Term Loans shall not directly adversely affect the Lenders holding such tranche of Term Loans without their consent).
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any
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liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Agreement or the other Loan Documents invalid or unenforceable.
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In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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This Credit Agreement is entered into between us for the uses and purposes hereinabove set forth as of the date first above written.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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BIO-TECHNE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel
RESEARCH AND DIAGNOSTIC SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel
BIONOSTICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
CYVEK, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel
PROTEINSIMPLE
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel
NOVUS BIOLOGICALS, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
CLINIQA CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel
ADVANCED CELL DIAGNOSTICS
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel
QT HOLDINGS, CORP.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President and General Counsel
EXOSOME DIAGNOSTICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice-President and General Counsel
ASURAGEN, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
B-MOGEN BIOTECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President, Chief Executive Officer
and Secretary
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
BMO XXXXXX BANK N.A., as Administrative Agent, Sustainability Structuring Agent, Swing Line Lender and a Lender
By:/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Director
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
JPMORGAN CHASE BANK, N.A. as a Lender
By:/s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Authorized Officer
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:/s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Vice President
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By:/s/ Xxxxxxxxxxx Xxxxxx
Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
BANK OF AMERICA, N.A., as a Lender
By:/s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By:/s/ Xxxxxx X Xxxx
Name: Xxxxxx X Xxxx
Title: Managing Director
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
THE HUNTINGTON NATIONAL BANK, as a Lender
By:/s/ Xxxxxx Xxxxxx-Xxxxxx
Name: Xxxxxx Xxxxxx-Xxxxxx
Title: Vice President
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
KeyBank National Association, as a Lender
By:/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
M&T Bank, Successor by merger to People’s United Bank, N.A., as a Lender
By:/s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
Citibank, N.A., as a Lender
By:/s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
XXXXXXX SACHS BANK USA, as a Lender
By:/s/ Xxxxxxx X. Xxxxxx XX
Name: Xxxxxxx X. Xxxxxx XX
Title: Authorized Signatory
[Bio-Techne - Signature Page to Amended and Restated Credit Agreement]
Exhibit A
Notice of Borrowing
Date: __________ __, ____
To: | BMO Xxxxxx Bank N.A., as Administrative Agent for the Lenders, parties to the Amended and Restated Credit Agreement dated as of August 31, 2022 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), among Bio-Techne Corporation, the Guarantors party thereto, the Lenders party thereto, and BMO Xxxxxx Bank N.A., as Administrative Agent |
Ladies and Gentlemen:
The undersigned, Bio-Techne Corporation (the “Borrower”), refers to the Credit Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit Agreement, of the Borrowing specified below:
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the proposed Borrowing, before and after giving effect thereto and to the application of the proceeds therefrom:
BIO-TECHNE CORPORATION
By:
Name:
Title:
Exhibit A-1
Exhibit B
Notice of Continuation/Conversion
Date: __________ __, ____
To: | BMO Xxxxxx Bank N.A., as Administrative Agent for the Lenders, parties to the Amended and Restated Credit Agreement dated as of August 31, 2022 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), among Bio-Techne Corporation, the Guarantors party thereto, the Lenders party thereto, and BMO Xxxxxx Bank N.A., as Administrative Agent |
Ladies and Gentlemen:
The undersigned, Bio-Techne Corporation (the “Borrower”), refers to the Credit Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit Agreement, of the [conversion] [continuation] of the Loans specified herein, that:
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the proposed conversion/continuation date, before and after giving effect thereto and to the application of the proceeds therefrom:
BIO-TECHNE CORPORATION
By:
Name:
Title:
Exhibit B-1
Exhibit C-1
[FORM OF] Term Note
U.S. $[________________][__________ __], 20[__]
For Value Received, the undersigned, Bio-Techne Corporation, a Minnesota corporation (the “Borrower”), hereby promises to pay to _____________________ (the “Lender”) or its registered assigns on the Term Loan Maturity Date of the hereinafter defined Credit Agreement, at the principal office of Administrative Agent in Minneapolis, Minnesota (or such other location as Administrative Agent may designate to Borrower), in immediately available funds, the principal sum of ___________________________ and ____/100 Dollars ($_____________) or, if less, the aggregate unpaid principal amount of all Term Loans made by the Lender to Borrower pursuant to the Credit Agreement, together with interest on the principal amount of its Term Loan outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement.
This Note is one of the Term Notes referred to in the Amended and Restated Credit Agreement dated as of August 31, 2022, among Borrower, the Guarantors party thereto, the Lenders party thereto and BMO Xxxxxx Bank N.A., as Administrative Agent (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), and this Note and the holder hereof are entitled to all the benefits provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of New York.
Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement.
Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.
BIO-TECHNE CORPORATION
By:
Name:
Title:
Exhibit C-1-1
Exhibit C-2
[FORM OF] Revolving Note
U.S. $[________________][__________ __], 20[__]
For Value Received, the undersigned, Bio-Techne Corporation, a Minnesota corporation (the “Borrower”), hereby promises to pay to _____________________ (the “Lender”) or its registered assigns on the Revolving Credit Termination Date of the hereinafter defined Credit Agreement, at the principal office of Administrative Agent in Minneapolis, Minnesota (or such other location as Administrative Agent may designate to Borrower), in immediately available funds, the principal sum of ___________________________ and ____/100 Dollars ($_____________) or, if less, the aggregate unpaid principal amount of all Revolving Loans made by the Lender to Borrower pursuant to the Credit Agreement, together with interest on the principal amount of each Revolving Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Amended and Restated Credit Agreement dated as of August 31, 2022, among Borrower, the Guarantors party thereto, the Lenders party thereto and BMO Xxxxxx Bank N.A., as Administrative Agent (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), and this Note and the holder hereof are entitled to all the benefits provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of New York.
Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement.
Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.
BIO-TECHNE CORPORATION
By:
Name:
Title:
Exhibit C-2-1
Exhibit C-3
[FORM OF] Swing Note
U.S. $20,000,000.00[__________ __], 20[__]
For Value Received, the undersigned, Bio-Techne Corporation, a Minnesota corporation (the “Borrower”), hereby promises to pay to BMO Xxxxxx Bank N.A. (the “Lender”) or its registered assigns on the Revolving Credit Termination Date of the hereinafter defined Credit Agreement, at the principal office of Administrative Agent in Minneapolis, Minnesota (or such other location as Administrative Agent may designate to Borrower), in immediately available funds, the principal sum of Twenty Million and 00/100 Dollars ($20,000,000) or, if less, the aggregate unpaid principal amount of all Swing Loans made by the Lender to Borrower pursuant to the Credit Agreement, together with interest on the principal amount of each Swing Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement.
This Note is the Swing Note referred to in the Amended and Restated Credit Agreement dated as of August 31, 2022, among Borrower, the Guarantors party thereto, the Lenders party thereto and BMO Xxxxxx Bank N.A., as Administrative Agent (as extended, renewed, amended or restated from time to time, the “Credit Agreement”), and this Note and the holder hereof are entitled to all the benefits provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of New York.
Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement.
Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.
BIO-TECHNE CORPORATION
By:
Name:
Title:
Exhibit C-3-1
Exhibit D
Bio-Techne Corporation
Compliance Certificate
To: | BMO Xxxxxx Bank N.A., as Administrative Agent under, and the Lenders from time to time party to, the Credit Agreement described below |
This Compliance Certificate is furnished to Administrative Agent and the Lenders pursuant to that certain Amended and Restated Credit Agreement dated as of August 31, 2022, among us and the other parties thereto (as extended, renewed, amended or restated from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed thereto in the Credit Agreement.
The Undersigned hereby certifies ON BEHALF OF Xxxxxxxx in his/her capacity as an Authorized Representative of Xxxxxxxx and not in an individual capacity, that:
1 If applicable.
D-1
[Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
]
The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this ___ day of __________ __ 20__.
BIO-TECHNE CORPORATION
By:
Name:
Title:
2 NTD: Include this bracketed language if the list of Immaterial Subsidiaries has changed such that a previously designated Immaterial Subsidiary has lost such designation and therefore needs to become a Xxxxxxxxx.
X-0
Schedule I
to Compliance Certificate
Bio-Techne Corporation
Compliance Calculations
for Credit Agreement dated as of August 31, 2022
Calculations as of _____________, _______
A. Minimum Interest Coverage Ratio (Section 7.16(a)) | | |
0. Xxx Income for past 4 quarters | $ | |
2. Interest Expense for past 4 quarters | | |
3. Income taxes for past 4 quarters | | |
4. Adjustments for: | | |
(i) Permitted Acquisitions adjustments including (A) inventory step-ups associated with inventory, (B) one-time professional fees associated, (C) any non-recurring fees, expenses or charges (including severance, restructuring charges, relocation costs and one-time compensation charges) and (D) other non-recurring extraordinary items; provided that cash adjustments under this subsection are less than or equal to 15% of EBITDA | | |
(ii) gains or losses realized upon the sale or other disposition of any asset that is not sold or disposed of in the ordinary course of business | | |
(iii) extraordinary or non-recurring charges, expenses, gains or losses | | |
(iv) any losses from an early extinguishment of indebtedness | | |
(v) all other non-cash compensation expenses from equity based compensation and non-cash charges, non-cash expenses or non-cash gains or losses in such period (excluding any such item that is non-cash during such period but the subject of a cash payment in a prior or future period) | | |
TOTAL | | |
5. Sum of lines A1, A2, A3, and A4 (“EBIT”) | $ | |
Schedule I-1
0. Xxxx interest payments for past 4 quarters | | |
7. Ratio of Line A5 to Line A6 | | ____:1.00 |
8. Line A7 ratio must not be less than | | 3.00:1.00 |
9. Borrower is in compliance (circle yes or no) | | yes/no |
B. Maximum Total Leverage Ratio (Section 7.16(b)) | | |
0. Xxxxx Funded Debt (gross) | $ | |
2. Less unrestricted domestic cash | | |
0. Xxxxx Funded Debt (net) | | |
4. EBIT | | |
5. Depreciation and Amortization Expense for past 4 quarters | | |
6. EBITDA of the target of a Permitted Acquisition | | |
7. Sum of Lines B4, B5 and B6 (“EBITDA”) | | |
8. Ratio of Line B3 to Line B7 | | ____:1.00 |
9. Line B8 ratio must not exceed | | 3.50:1.003 |
10. Borrower is in compliance (circle yes or no) | | yes/no |
3 During a Qualified Acquisition Period, such ratio shall be increased to 4.00 to 1.00.
Schedule I-2
Schedule II
to Compliance Certificate
Bio-Techne Corporation
Immaterial Subsidiaries as of [__________ __], 202[_]
Schedule II-1
Exhibit E
Additional Guarantor Supplement
______________, ___
BMO Xxxxxx Bank N.A., as Administrative Agent for the Lenders parties to the Amended and Restated Credit Agreement dated as of August 31, 2022, among Bio-Techne Corporation, as Borrower, the Guarantors referred to therein, the Lenders from time to time party thereto, Administrative Agent and the other parties thereto (as extended, renewed, amended or restated from time to time, the “Credit Agreement”)
Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not defined herein which are defined in the Credit Agreement shall have for the purposes hereof the meaning provided therein.
The undersigned, [name of Subsidiary Guarantor], a [jurisdiction of incorporation or organization] hereby elects to be a “Guarantor” for all purposes of the Credit Agreement, effective from the date hereof. The undersigned confirms that the representations and warranties set forth in Section 5 of the Credit Agreement are true and correct as to the undersigned as of the date hereof and the undersigned shall comply with each of the covenants set forth in Sections 6 and 7 of the Credit Agreement applicable to it.
Without limiting the generality of the foregoing, the undersigned xxxxxx agrees to perform all the obligations of a Guarantor under, and to be bound in all respects by the terms of, the Credit Agreement, including Section 10 thereof, to the same extent and with the same force and effect as if the undersigned were a signatory party thereto.
The undersigned acknowledges that this Agreement shall be effective upon its execution and delivery by the undersigned to Administrative Agent, and it shall not be necessary for Administrative Agent or any Lender, or any of their Affiliates entitled to the benefits hereof, to execute this Agreement or any other acceptance hereof. This Agreement shall be construed in accordance with and governed by the internal laws of the State of New York.
Very truly yours,
[Name of Xxxxxxxxxx Xxxxxxxxx]
By:
Name:
Title:
Exhibit E-1
Exhibit F
Assignment and Assumption
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]4 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] 5 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]6 hereunder are several and not joint.]7 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, guarantees, and swing line loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor
4 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
5 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
6 Select as appropriate.
7 Include bracketed language if there are either multiple Assignors or multiple Assignees.
Exhibit F-1
and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1.Assignor[s]:
2.Assignee[s]:
[Assignee is an [Affiliate][Approved Fund] of [identify Lender]
3.Borrower:Bio-Techne Corporation
4.Administrative Agent:______________________, as the administrative agent under the Credit Agreement
0.Xxxxxx Agreement:The Amended and Restated Credit Agreement dated as of August 31, 2022, among Bio-Techne Corporation, the Guarantors from time to time party thereto, the Lenders parties thereto, BMO Xxxxxx Bank N.A., as Administrative Agent, and the other parties thereto
6. Assigned Interest[s]:
Assignor[s]8 | Assignee[s]9 | Facility Assigned10 | Aggregate Amount of Commitment/Loans for all Lenders11 | Amount of Commitment/Loans Assigned8 | Percentage Assigned of Commitment/ | CUSIP Number |
| | | $ | $ | % | |
| | | $ | $ | % | |
| | | $ | $ | % | |
[0.Xxxxx Date:______________]13
[Page break]
8 List each Assignor, as appropriate.
9 List each Assignee, as appropriate.
10 Fill in the appropriate terminology for the Types of facilities and/or Loans under the Credit Agreement that are being assigned under this Assignment (e.g., “Revolving Credit Commitment”, “Incremental Term Loan Commitment”, “Term Loan” etc.)
11 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
12 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of the same Type of all applicable Lenders thereunder.
13 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.
Exhibit F-2
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]14
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNOR]
By:
Title:
ASSIGNEE[S]15
[NAME OF ASSIGNEE]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
14 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).
15 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).
Exhibit F-3
[Consented to and]16 Accepted:
BMO Xxxxxx Bank N.A., as
Administrative Agent and Swing Line Lender
By:
Title:
[Consented to:]17
Bio-Techne Corporation
By:
Title:
16 To be added only if the consent of the Administrative Agent and the Swing Line Lender is required by the terms of the Credit Agreement.
17 To be added only if the consent of Borrower is required by the terms of the Credit Agreement.
Exhibit F-4
ANNEX 1
BIO-TECHNE CORPORATION CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.Representations and Warranties.
1.1Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.10 of the Credit Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.5 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all
Annex 1-1
of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3.General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by facsimile or by email of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
Annex 1-2
Exhibit G
Form of Credit Commitment Increase Supplement
Reference is made to the certain Amended and Restated Credit Agreement dated as of August 31, 2022 (as the same may hereafter by amended, supplemented or modified from time to time the “Credit Agreement”), among Bio-Techne Corporation, a Minnesota corporation (“Borrower”), the Guarantors from time to time party thereto, the Lenders from time to time a party thereto, BMO Xxxxxx Bank N.A., as Administrative Agent (“Administrative Agent”), and the other parties thereto. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
The Lender identified on Schedule 1 hereto (the “Increasing Lender”), Administrative Agent and Xxxxxxxx agree as follows:
The Increasing Lender hereby irrevocably [increases its Revolving Credit Commitment] [agrees to provide a new Incremental Term Loan Commitment] to Borrower by the amount set forth on Schedule 1 hereto under the heading “Principal Amount of Increased Credit Commitment” (the “Increased Credit Commitment”) pursuant to Section 2.16 of the Credit Agreement. From and after the Effective Date (as defined below), (i) the Increasing Lender will be a [Revolving] [Term Loan] Lender under the Credit Agreement with respect to the Increased Credit Commitment in addition to its existing Commitment under the Credit Agreement and (ii) the total amount of the Commitment of the Increasing Lender will be the amount set forth on Schedule 1 hereto under the heading “Total Amount of Commitment of Increasing Lender (including Increased Credit Commitment).”
Administrative Agent (a) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement; and (b) makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower, any of its Subsidiaries or any other obligor or the performance or observance by Borrower, any of its Subsidiaries or any other obligor of any of their respective obligations under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto.
The Increasing Lender (a) represents and warrants that it is legally authorized to enter into this Credit Commitment Increase Supplement; (b) confirms that it has received a copy of the Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 6.5 of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Credit Commitment Increase Supplement; (c) agrees that it will, independently and without reliance upon Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to Administrative
Exhibit G-1
Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Loan Documents and will perform in accordance with its terms all the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
The effective date of this Credit Commitment Increase Supplement shall be the Effective Date of the Increased Credit Commitment described in Schedule 1 hereto (the “Effective Date”). Following the execution of this Credit Commitment Increase Supplement by each of the Increasing Lender and Borrower, it will be delivered to Administrative Agent for acceptance and recording by it pursuant to the Credit Agreement, effective as of the Effective Date (which shall not, unless otherwise agreed to by Administrative Agent, be earlier than five Business Days after the date of such acceptance and recording by Administrative Agent).
Upon such acceptance and recording, from and after the Effective Date, Administrative Agent shall make all payments in respect of the Increased Credit Commitment (including payments of principal, interest, fees and other amounts) to the Increasing Lender for amounts which have accrued on and subsequent to the Effective Date.
This Credit Commitment Increase Supplement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Credit Commitment Increase Supplement to be executed as of the date first written above by their respective duly authorized officers on Schedule 1 hereto.
[Remainder of page intentionally left blank. Schedule 1 to follow.]
Exhibit G-2
Schedule 1
to Credit Commitment Increase Supplement
Name of Increasing Lender: | | ||
Effective Date of Increased Credit Commitment: | | ||
Commitment Type being increased18: | | ||
| | ||
Principal Amount of Increased Commitment: | Total Amount of Commitments of Increasing Lender (including Increased Credit Commitment): | ||
$____________________ | $____________________ | ||
[NAME OF INCREASING LENDER]
Name:
Title:
BIO-TECHNE CORPORATION
Name:
Title:
Accepted and consented to by the
Administrative Agent and the Swing
Line Lender this ___ day of __________
BMO Xxxxxx Bank N.A., as Administrative
Agent and Swing Line Lender
By:
Name:
Title:
18 State whether such increased Commitments are Revolving Credit Commitments or Incremental Term Loan Commitment.
Schedule 1 to Exhibit G
Schedule 1
Commitments
Name of Lender | Revolving Credit Commitment | Percentage of Revolving Credit Commitments |
BMO Xxxxxx Bank N.A. | $170,000,000 | 17% |
JPMorgan Chase Bank N.A. | $145,000,000 | 14.5% |
PNC Bank, National Association | $145,000,000 | 14.5% |
U.S. Bank National Association | $85,000,000 | 8.5% |
Bank of America, N.A. | $85,000,000 | 8.5% |
Xxxxx Fargo Bank, National Association | $85,000,000 | 8.5% |
Huntington National Bank | $75,000,000 | 7.5% |
KeyBank National Association | $75,000,000 | 7.5% |
M&T Bank, successor by merger to People’s United Bank, N.A. | $75,000,000 | 7.5% |
Citibank, N.A. | $40,000,000 | 4% |
Xxxxxxx Sachs Bank USA | $20,000,000 | 2% |
Total | $1,000,000,000 | 100% |
Schedule 1
Schedule 5.2
Subsidiaries
Name | Jurisdiction of Organization | Percentage Ownership | Owner |
|---|---|---|---|
Advanced Cell Diagnostics, Inc. | Delaware | 100% | Bio-Techne Corporation |
Advanced Cell Diagnostics (Beijing) Co. Ltd. | China | 100% | Advanced Cell Diagnostics, Inc. |
Alpha Innotech Corp. | Delaware | 100% | ProteinSimple |
Asuragen, Inc. | Delaware | 100% | Bio-Techne Corporation |
Atlanta Biologicals, LLC. | Georgia | 100% | Bio-Techne Corporation |
Bio-Techne AG | Switzerland | 100% | Bio-Techne, Ltd. |
Bio-Techne Canada Corporation | Nova Scotia | 100% | Novus Biologicals, LLC |
Bio-Techne China Co., Ltd. | China | 100% | Research and Diagnostic Systems, Inc. |
Bio-Techne GmbH | Germany | 100% | Bio-Techne Ltd. |
Bio-Techne Hong Kong, Ltd. | Hong Kong | 100% | Bio-Techne China Co., Ltd. |
Bio-Techne Holding Corporation | Delaware | 100% | Bio-Techne Corporation |
Bio-Techne India Private Limited | India | 1% | Research and Diagnostic Systems, Inc. |
Bio-Techne India Private Limited | India | 99% | Bio-Techne Corporation |
Bio-Techne Ireland Limited | Ireland | 100% | Bio-Techne Corporation |
Bio-Techne Korea, LLC | South Korea | 100% | Research and Diagnostic Systems, Inc. |
Bio-Techne Ltd. | United Kingdom | 100% | Bio-Techne Corporation |
Bio-Techne Sales Corporation | Minnesota | 100% | Bio-Techne Corporation |
Bio-Techne Singapore Pte. Ltd. | Singapore | 100% | Research and Diagnostic Systems, Inc. |
Bio-Techne SAS | France | 100% | Bio-Techne Ltd. |
Bio-Techne S.r.l. | Italy | 100% | Bio-Techne Ltd. |
Bio-Techne R&D Systems s.r.o. | Czech Republic | 100% | Bio-Techne Ltd. |
Bio-Techne R&D Systems, S.L. | Spain | 100% | Bio-Techne Ltd. |
Bio-Techne R&D Systems Kft. | Hungary | 100% | Bio-Techne Ltd. |
Bio-Techne sp. z o. o. | Poland | 100% | Bio-Techne Ltd. |
Schedule 5.2
Name | Jurisdiction of Organization | Percentage Ownership | Owner |
|---|---|---|---|
Bionostics, Inc. | Massachusetts | 100% | Research and Diagnostic Systems, Inc. |
BiosPacific, Inc. | Minnesota | 100% | Research and Diagnostic Systems, Inc. |
Boston Biochem, Inc. | Minnesota | 100% | Research and Diagnostic Systems, Inc. |
B-Mogen Biotechnologies, Inc. | Minnesota | 100% | Bio-Techne Corporation |
Cliniqa Corporation | California | 100% | Bio-Techne Corporation |
CyVek, Inc. | Delaware | 100% | Research and Diagnostic Systems, Inc. |
Eminence Biotechnology (Suzhou) Co., Ltd. | China | 51.39% | Bio-Techne China Co., Ltd. |
Exosome Diagnostics, Inc. | Delaware | 100% | Bio-Techne Corporation |
Exosome Diagnostics GmbH | Germany | 100% | Exosome Diagnostics, Inc. |
Imgenex Corporation | California | 100% | Bio-Techne Corporation |
McLaren Reorganization Sub II, LLC | Delaware | 100% | ProteinSimple |
Namocell Inc. | Delaware | 100% | ProteinSimple |
Namocell | Hong Kong | 100% | Namocell Inc. |
Namocell | Suzhow | 100% | Namocell Inc. |
Novus Biologicals, LLC | Delaware | 11% | Imgenex Corporation |
Novus Biologicals Limited | United Kingdom | 100% | Novus Biologicals, LLC |
ProteinSimple | Delaware | 100% | Bio-Techne Corporation |
ProteinSimple Hong Kong Ltd. | Hong Kong | 100% | Alpha Innotech Corp. |
ProteinSimple Japan K.K. | Japan | 100% | ProteinSimple |
ProteinSimple Ltd. | Ontario, Canada | 100% | McLaren Reorganization Sub II, LLC |
ProteinSimple China (Shanghai) Co., Ltd. | China | 100% | ProteinSimple Hong Kong Ltd. |
Research and Diagnostic Systems, Inc. | Minnesota | 100% | Bio-Techne Corporation |
ScaleReady USA, LLC | Delaware | 33.33% | Bio-Techne Corporation |
Shanghai PrimeGene Bio-Tech Co., Ltd. | China | 100% | Bio-Techne China Co., Ltd. |
Tocris Xxxxxxx Limited | United Kingdom | 100% | Bio-Techne Ltd. |
Schedule 5.2
Name | Jurisdiction of Organization | Percentage Ownership | Owner |
|---|---|---|---|
QT Holdings Corp. | Delaware | 100% | Bio-Techne Corporation |
Schedule 5.2
Schedule 7.1
(Indebtedness)
None.
Schedule 7.1
