DOCPROPERTY DOCXDOCID. DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 such Debt or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement of this clause (iii) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such five (5) Business Day period (or such shorter period as Agent may agree in its sole discretion) that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)), (iv) the security agreements (taken as a whole) relating to such Debt, if applicable, are substantially the same as or more favorable to the Loan Parties than the security documents governing the Term Debt or, as applicable, the UST Tranche A Facility Indebtedness and the UST Tranche B Facility Indebtedness, with such differences as are reasonably satisfactory to Agent, (v) no Event of Default shall exist immediately prior to or after giving effect to such incurrence, (vi) a representative acting on behalf of the holders of such Debt shall have become party to or otherwise subject to the provisions of the Term Debt Intercreditor Agreement or another intercreditor agreement in form and substance reasonably satisfactory to Agent and Administrative Borrower that contains terms substantially similar to the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms as determined by the Agent in good faith, and (vii) if applicable, the priority position of the holders of such Debt with respect to the Collateral under the Term Debt Intercreditor Agreement shall be equivalent or junior to the position of the holders of the Term Debt and all obligations under such Debt shall constitute Tranche B-2 Obligations under (and as defined in) the Term Debt Intercreditor Agreement, or the holders of the UST Tranche A Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche A Obligations under (and as defined in) the Term Debt Intercreditor Agreement or the holders of the UST Tranche B Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche B Obligations under (and as defined in) the Term Debt Intercreditor Agreement, in each case as applicable. Notwithstanding the foregoing, Permitted Additional Debt shall include all Permitted Additional Debt (as defined in the Term Debt Agreement as in effect on the date hereof). Permitted Discretion - Agent’s judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment. Permitted Junior Debt - unsecured Debt incurred by any Loan Party in the form of one or more series of unsecured notes or loans; provided, that (i) if constituting Subordinated Debt, (A) such Debt (including any Guarantee thereof) is subordinated to the Obligations on terms customary for high yield subordinated debt securities or otherwise reasonably satisfactory to Agent and (B) the Obligations at all times constitute “Designated Senior Debt” (or comparable term) under the documents governing such Debt, (ii) such Debt does not mature or have scheduled amortization or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale, change of control or similar provisions or AHYDO “catch-up” payments), in each case prior to the date that is ninety-one (91) days after the then Latest Maturity Date, (iii) such Debt is not at any time guaranteed by any Person that is not a Loan Party and (iv) the other terms and conditions of such Debt (excluding pricing, fees, rate floors and optional prepayment or optional redemption terms), if different than the terms hereof, are customary market terms for Debt of such type (provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion), together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of the DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement of this clause (iv) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such five (5) Business Day period (or such shorter period as Agent may agree in its sole discretion) that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)). Permitted Lien - as defined in Section 10.2.1. Permitted Refinancing - with respect to any Person, any modification, refinancing, refunding, renewal, replacement or extension of any Debt of such Person; provided, that (a) the original aggregate principal amount of such Debt (or accreted value, if applicable) does not exceed the aggregate principal amount (or accreted value, if applicable) of the Debt so modified, refinanced, refunded, renewed, replaced or extended except (i) by an amount equal to accrued but unpaid interest, premiums and fees payable by the terms of such Debt and reasonable fees, expenses, original issue discount and upfront fees incurred in connection with such modification, refinancing, refunding, renewal, replacement or extension and (ii) by an amount equal to any existing available commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Debt permitted pursuant to Section 10.2.3(e), the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Debt being modified, refinanced, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Debt permitted pursuant to Sections 10.2.3(e), at the time thereof, no Event of Default shall have occurred and be continuing and (d) if such Debt being modified, refinanced, refunded, renewed, replaced or extended is Debt permitted pursuant to Section 10.2.3(b) or 10.2.3(r), or is otherwise a Junior Financing, (i) to the extent such Debt being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment or in lien priority to the Obligations, the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment or in lien priority, as applicable, to the Obligations on terms (taken as a whole) (x) at least as favorable to Lenders as those contained in the documentation governing the Debt being modified, refinanced, refunded, renewed, replaced or extended (provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion), together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless Agent notifies Parent within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)) or (y) otherwise reasonably acceptable to Agent, (ii) the obligors (including any guarantors) in respect of the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension shall not include any Person other than the obligors (including any guarantors) of the Debt being modified, refinanced, refunded, renewed, replaced or extended unless otherwise permitted hereby, and (iii) in the case of any Permitted Refinancing in respect of the Term Debt, UST Tranche A Facility Indebtedness or UST Tranche B Facility DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 Indebtedness, any Term Refinancing Debt, any UST Tranche A Refinancing Debt, or any UST Tranche B Refinancing Debt, such Permitted Refinancing is secured, if at all, only by all or any portion of the collateral securing the Term Debt, the UST Tranche A Facility Indebtedness or the UST Tranche B Facility Indebtedness, as applicable (but not by any other assets) pursuant to one or more security agreements subject, in the case of assets constituting (or required to constitute) Collateral, to the Term Debt Intercreditor Agreement or any replacement intercreditor agreement reasonably satisfactory to Agent, that contains terms substantially similar to the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms as determined by the Agent in good faith. When used with respect to any specified Debt, Permitted Refinancing shall mean the Debt incurred to effectuate a Permitted Refinancing of such specified Debt. Person - any individual, corporation, limited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity. Plan - an employee pension benefit plan (other than a Multiemployer Plan) that is either (a) maintained by a Loan Party or Subsidiary for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which a Loan Party or Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions. Pledged Collateral - as defined in Section 7.1.1. Pledged Debt - as defined in Section 7.1.1. Pledged Equity - as defined in Section 7.1.1. Pledged Securities - any Promissory Notes, stock certificates or other Securities, certificates or Instruments now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments or other documents representing or evidencing any Pledged Collateral. Post-Closing Side Letter - the post-closing side letter as of the date hereof among certain Loan Parties and Agent.
Appears in 1 contract
DOCPROPERTY DOCXDOCID. DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 such Debt or drafts of Compliance Certificate - a certificate substantially in the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement of this clause (iii) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such five (5) Business Day period (or such shorter period form attached hereto as Agent may agree in its sole discretion) that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)), (iv) the security agreements (taken as a whole) relating to such Debt, if applicable, are substantially the same as or more favorable to the Loan Parties than the security documents governing the Term Debt orExhibit C, as applicable, the UST Tranche A Facility Indebtedness and the UST Tranche B Facility Indebtedness, with such differences as are reasonably satisfactory to Agent, (v) no Event of Default shall exist immediately prior to or after giving effect to such incurrence, (vi) a representative acting on behalf of the holders of such Debt shall have become party to or otherwise subject to the provisions of the Term Debt Intercreditor Agreement or another intercreditor agreement in form and substance reasonably satisfactory to may be modified by Agent and Administrative Borrower that contains from time to time in a manner consistent with the terms substantially similar to of this Agreement, by which Administrative Borrower, on behalf of Loan Parties, calculates the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms as determined Fixed Charge Coverage Ratio for the period covered by the most recent financial statements delivered pursuant to Section 10.1.1 whether or not such Compliance Certificate is delivered during a Financial Reporting Trigger Period. Concentration Account - account maintained by Administrative Xxxxxxxx, on behalf of Borrowers, with Agent as designated in good faith, a letter agreement between Administrative Borrower and (vii) if applicable, the priority position of the holders of such Debt with respect to the Collateral under the Term Debt Intercreditor Agreement shall be equivalent or junior to the position of the holders of the Term Debt and all obligations under such Debt shall constitute Tranche B-2 Obligations under (and as defined in) the Term Debt Intercreditor Agreement, or the holders of the UST Tranche A Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche A Obligations under (and as defined in) the Term Debt Intercreditor Agreement or the holders of the UST Tranche B Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche B Obligations under (and as defined in) the Term Debt Intercreditor Agreement, in each case as applicable. Notwithstanding the foregoing, Permitted Additional Debt shall include all Permitted Additional Debt (as defined in the Term Debt Agreement as in effect Agent on the date hereof)Closing Date and any other account designated as the “Concentration Account” by Administrative Borrower and Agent from time to time. Permitted Discretion - Agent’s judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment. Permitted Junior Debt - unsecured Debt incurred by any Loan Party in the form of one or more series of unsecured notes or loans; provided, that (i) if constituting Subordinated Debt, (A) such Debt (including any Guarantee thereof) is subordinated to the Obligations on terms customary for high yield subordinated debt securities or otherwise reasonably satisfactory to Agent and (B) the Obligations at all times constitute “Designated Senior Debt” (or comparable term) under the documents governing such Debt, (ii) such Debt does not mature or have scheduled amortization or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale, change of control or similar provisions or AHYDO “catch-up” payments), in each case prior to the date that is ninety-one (91) days after the then Latest Maturity Date, (iii) such Debt is not at any time guaranteed by any Person that is not a Loan Party and (iv) the other terms and conditions of such Debt (excluding pricing, fees, rate floors and optional prepayment or optional redemption terms), if different than the terms hereof, are customary market terms for Debt of such type (provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion), together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of the DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement of this clause (iv) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such five (5) Business Day period (or such shorter period as Agent may agree in its sole discretion) that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)). Permitted Lien - as defined in Section 10.2.1. Permitted Refinancing Conforming Changes - with respect to either the use or administration of the Benchmark, or any PersonBenchmark Replacement, any modificationtechnical, refinancingadministrative or operational changes (including, refundingfor example and not by way of limitation or prescription, renewalchanges to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period” or any similar or analogous definition, replacement or extension the definition of any Debt “Government Securities Business Day,” timing and frequency of such Person; provided, that (a) the original aggregate principal amount determining rates and making payments of such Debt (or accreted value, if applicable) does not exceed the aggregate principal amount (or accreted value, if applicable) of the Debt so modified, refinanced, refunded, renewed, replaced or extended except (i) by an amount equal to accrued but unpaid interest, premiums timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and fees payable by length of lookback periods, the terms applicability of such Debt Section 3.9 or 5.5.1 and reasonable feesother technical, expenses, original issue discount and upfront fees incurred administrative or operational matters) that Agent decides (in consultation with Administrative Borrower) may be appropriate in connection with such modification, refinancing, refunding, renewal, replacement the use or extension and (ii) by an amount equal to any existing available commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Debt permitted pursuant to Section 10.2.3(e), the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Debt being modified, refinanced, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Debt permitted pursuant to Sections 10.2.3(e), at the time thereof, no Event of Default shall have occurred and be continuing and (d) if such Debt being modified, refinanced, refunded, renewed, replaced or extended is Debt permitted pursuant to Section 10.2.3(b) or 10.2.3(r), or is otherwise a Junior Financing, (i) to the extent such Debt being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment or in lien priority to the Obligations, the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment or in lien priority, as applicable, to the Obligations on terms (taken as a whole) (x) at least as favorable to Lenders as those contained in the documentation governing the Debt being modified, refinanced, refunded, renewed, replaced or extended (provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion), together with a reasonably detailed description administration of the material terms Benchmark or to reflect the adoption and conditions of such Debt or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless Agent notifies Parent within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)) or (y) otherwise reasonably acceptable to Agent, (ii) the obligors (including any guarantors) in respect of the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension shall not include any Person other than the obligors (including any guarantors) of the Debt being modified, refinanced, refunded, renewed, replaced or extended unless otherwise permitted hereby, and (iii) in the case implementation of any Permitted Refinancing Benchmark Replacement or to permit the use and administration thereof by Agent in respect of the Term Debt, UST Tranche A Facility Indebtedness or UST Tranche B Facility DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 Indebtedness, any Term Refinancing Debt, any UST Tranche A Refinancing Debt, or any UST Tranche B Refinancing Debt, such Permitted Refinancing is secureda manner substantially consistent with market practice (or, if at all, only by all or Agent decides that adoption of any portion of such market practice is not administratively feasible or if Agent determines that no market practice for the collateral securing administration of any such rate exists, in such other manner of administration as Agent decides (in consultation with Administrative Borrower) is reasonably necessary in connection with the Term Debtadministration of this Agreement and the other Loan Documents). Consolidated EBITDA - for any period of determination calculated on a Pro Forma Basis, the UST Tranche A Facility Indebtedness or the UST Tranche B Facility IndebtednessConsolidated Net Income for such period, as applicable (but not by any other assets) pursuant to one or more security agreements subject, in the case of assets constituting (or required to constitute) Collateral, to the Term Debt Intercreditor Agreement or any replacement intercreditor agreement reasonably satisfactory to Agent, that contains terms substantially similar to the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms as determined by the Agent in good faith. When used with respect to any specified Debt, Permitted Refinancing shall mean the Debt incurred to effectuate a Permitted Refinancing of such specified Debt. Person - any individual, corporation, limited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity. Plan - an employee pension benefit plan (other than a Multiemployer Plan) that is either (a) maintained by a Loan Party or Subsidiary for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which a Loan Party or Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions. Pledged Collateral - as defined in Section 7.1.1. Pledged Debt - as defined in Section 7.1.1. Pledged Equity - as defined in Section 7.1.1. Pledged Securities - any Promissory Notes, stock certificates or other Securities, certificates or Instruments now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments or other documents representing or evidencing any Pledged Collateral. Post-Closing Side Letter - the post-closing side letter as of the date hereof among certain Loan Parties and Agent.plus:
Appears in 1 contract
DOCPROPERTY DOCXDOCID. DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 of Credit issued by such Debt or drafts Issuing Bank in the aggregate shall not exceed such Issuing Bank’s, LC Issuance Sublimit following the issuance of such Letter of Credit without the documentation relating thereto, stating that Parent has determined in good faith that consent of such terms and conditions satisfy the requirement of this clause (iii) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such five (5) Business Day period (or such shorter period as Agent may agree Issuing Bank in its sole discretion) that it disagrees with such determination . LC Documents - all documents, instruments and agreements (including a reasonable description LC Requests and LC Applications) delivered by Administrative Borrower, Loan Parties or any other Person to any Issuing Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any Letter of Credit. LC Issuance Sublimit - for any Issuing Bank, its obligation to issue Letters of Credit up to the basis upon maximum aggregate stated amount on Schedule 1.1(b), or as specified hereafter in the most recent Assignment and Acceptance to which it disagrees)), is a party. The LC Issuance Sublimit of any Issuing Bank may be increased from time to time with the consent of such Issuing Bank and the approval of Agent. LC Obligations - the sum (ivwithout duplication) of (a) all amounts owing by Borrowers for any drawings under Letters of Credit; (b) the security agreements aggregate undrawn amount of all outstanding Letters of Credit; and (taken as c) all fees and other amounts owing by Borrowers with respect to Letters of Credit. LC Request - a whole) relating request for issuance of a Letter of Credit, to such Debtbe provided by Administrative Xxxxxxxx, if applicable, are substantially the same as or more favorable to the Loan Parties than the security documents governing the Term Debt or, as applicable, the UST Tranche A Facility Indebtedness and the UST Tranche B Facility Indebtedness, with such differences as are reasonably satisfactory to Agent, (v) no Event of Default shall exist immediately prior to or after giving effect to such incurrence, (vi) a representative acting on behalf of the holders of such Debt a Borrower, to Issuing Bank, in customary form which shall have become party to or otherwise subject to the provisions of the Term Debt Intercreditor Agreement or another intercreditor agreement be in form and substance reasonably satisfactory to Agent and Administrative Borrower that contains terms substantially similar to the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms Issuing Bank. Leasehold Property - any leasehold interest of any Loan Party as determined by the Agent in good faithlessee under any lease of Real Property. Xxxxxx Xxxxxxxxxxx - Lenders and their officers, directors, employees, Controlled Affiliates, agents and (vii) if applicable, the priority position of the holders of such Debt with respect to the Collateral under the Term Debt Intercreditor Agreement shall be equivalent or junior to the position of the holders of the Term Debt and all obligations under such Debt shall constitute Tranche B-2 Obligations under (and as defined in) the Term Debt Intercreditor Agreement, or the holders of the UST Tranche A Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche A Obligations under (and as defined in) the Term Debt Intercreditor Agreement or the holders of the UST Tranche B Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche B Obligations under (and as defined in) the Term Debt Intercreditor Agreement, in each case as applicableattorneys. Notwithstanding the foregoing, Permitted Additional Debt shall include all Permitted Additional Debt (Lenders - as defined in the Term Debt Agreement as in effect on preamble to this Agreement, including Agent and any other Person who hereafter becomes a “Lender” pursuant to an Assignment and Acceptance or otherwise. Letter of Credit - any standby or documentary letter of credit, including all Existing Letters of Credit, issued by any Issuing Bank for the date hereof)account of any Loan Party. Permitted Discretion Letter of Credit Subline - Agent’s judgment exercised in good faith at any time of determination, the lesser of (x) $450,000,000 and in (y) the exercise of reasonable (from the perspective of a secured asset-based lender) business judgmentaggregate Commitments at such time. Permitted Junior Debt License - unsecured Debt incurred by any Patent License, Trademark License, Copyright License, Commercial Software License or other license or sublicense agreement granting rights under Intellectual Property to which any Loan Party in the form is a party, including those listed on Schedule 1.1(f). Lien - any mortgage, deed of one trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or more series other), charge, or preference, priority or other security interest or preferential arrangement of unsecured notes any kind or loans; provided, that (i) if constituting Subordinated Debt, (A) such Debt nature whatsoever (including any Guarantee thereof) is subordinated to the Obligations on terms customary for high yield subordinated debt securities conditional sale or otherwise reasonably satisfactory to Agent and (B) the Obligations at all times constitute “Designated Senior Debt” (other title retention agreement, any easement, right of way or comparable term) under the documents governing such Debt, (ii) such Debt does not mature or have scheduled amortization or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale, change of control or similar provisions or AHYDO “catch-up” payments), in each case prior to the date that is ninety-one (91) days after the then Latest Maturity Date, (iii) such Debt is not at any time guaranteed by any Person that is not a Loan Party and (iv) the other terms and conditions of such Debt (excluding pricing, fees, rate floors and optional prepayment or optional redemption terms), if different than the terms hereof, are customary market terms for Debt of such type (provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion), together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of the DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 documentation relating theretoencumbrance on title to Real Property, stating and any Capitalized Lease or financing lease having substantially the same economic effect as any of the foregoing). Liquidity - as of any date of determination calculated on a Pro Forma Basis, the amount equal to: (a) Availability on such date, plus (b) all cash maintained by Loan Parties in one or more Dominion Accounts on such date (excluding the Borrowing Base Cash Account); provided, that Parent has determined in good faith during the period from the Closing Date to the date that such terms and conditions satisfy the requirement of this clause (iv) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such is forty-five (545) Business Day period days after the Closing Date (or such shorter longer period as Agent may agree in its sole reasonable discretion), Dominion Accounts shall be deemed to include any deposit account of Loan Parties as to which a Deposit Account Control Agreement is required to be delivered (or other method of control effected) that it disagrees with under this Agreement whether or not such determination (including requirement has been satisfied. Loan - a reasonable description loan made pursuant to Section 2.1, and any Overadvance Loan or Protective Advance; collectively, Loans. Loan Account - the loan account established by each Lender on its books pursuant to Section 5.9. Loan Documents - this Agreement, Other Agreements and Security Documents. For the avoidance of doubt, Hedging Agreements and any agreements in respect of Bank Product Debt do not constitute Loan Documents. Loan Party or Loan Parties - each Borrower and/or Guarantor as applicable. London Banking Day - a day on which dealings in US dollars deposits are transacted in the basis upon which it disagrees))London interbank market. Permitted Lien Margin Stock - as defined in Section 10.2.1Regulation U of the Federal Reserve Board. Permitted Refinancing Master Account - account maintained by Administrative Xxxxxxxx, on behalf of Borrowers, with respect Agent as designated in a letter agreement between Administrative Borrower and Agent on the Closing Date and any other account designated as the “Master Account” by Administrative Borrower and Agent from time to any Persontime. Master Assignment and Assumption - that certain Master Assignment and Assumption Agreement, any modificationdated as of the Second Amendment Effective Date, refinancing, refunding, renewal, replacement or extension of any Debt of such Person; provided, that by and among the Lenders and Agent. Material Adverse Effect - a (a) material adverse effect on the original aggregate principal amount business, operations, assets, liabilities (actual or contingent), operating results or financial condition of such Debt (or accreted valueParent and Restricted Subsidiaries, if applicable) does not exceed the aggregate principal amount (or accreted value, if applicable) of the Debt so modified, refinanced, refunded, renewed, replaced or extended except (i) by an amount equal to accrued but unpaid interest, premiums and fees payable by the terms of such Debt and reasonable fees, expenses, original issue discount and upfront fees incurred in connection with such modification, refinancing, refunding, renewal, replacement or extension and (ii) by an amount equal to any existing available commitments unutilized thereunder, taken as a whole; (b) other than with respect to a Permitted Refinancing in respect material adverse effect on the ability of Debt permitted pursuant to Section 10.2.3(e), the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Debt being modified, refinanced, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Debt permitted pursuant to Sections 10.2.3(e), at the time thereof, no Event of Default shall have occurred and be continuing and (d) if such Debt being modified, refinanced, refunded, renewed, replaced or extended is Debt permitted pursuant to Section 10.2.3(b) or 10.2.3(r), or is otherwise a Junior Financing, (i) to the extent such Debt being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment or in lien priority to the Obligations, the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment or in lien priority, as applicable, to the Obligations on terms Loan Parties (taken as a whole) to fully and timely perform their payment obligations under the Loan Documents to which any Loan Party is a party; or (xc) at least as favorable material adverse effect on the rights and remedies available to Lenders as those contained in or Agent under any Loan Document (other than due to the documentation governing the Debt being modified, refinanced, refunded, renewed, replaced action or extended (inaction of Agent or any Lender); provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion)that, together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless Agent notifies Parent within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)) or (y) otherwise reasonably acceptable to Agent, (ii) the obligors (including any guarantors) in respect of the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension shall not include any Person other than the obligors (including any guarantors) of the Debt being modified, refinanced, refunded, renewed, replaced or extended unless otherwise permitted hereby, and (iii) in the case of any Permitted Refinancing in respect of the Term Debt, UST Tranche A Facility Indebtedness or UST Tranche B Facility DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 Indebtedness, any Term Refinancing Debt, any UST Tranche A Refinancing Debt, or any UST Tranche B Refinancing Debt, such Permitted Refinancing is secured, if at all, only by all or any portion of the collateral securing the Term Debt, the UST Tranche A Facility Indebtedness or the UST Tranche B Facility Indebtedness, as applicable (but not by any other assets) pursuant to one or more security agreements subject, in the case of assets constituting (or required to constitute) Collateral, to the Term Debt Intercreditor Agreement or any replacement intercreditor agreement reasonably satisfactory to Agent, that contains terms substantially similar to the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms as determined by the Agent in good faith. When used with respect to any specified Debt, Permitted Refinancing shall mean the Debt incurred to effectuate a Permitted Refinancing of such specified Debt. Person - any individual, corporation, limited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity. Plan - an employee pension benefit plan (other than a Multiemployer Plan) that is either foregoing clause (a) maintained by ), the impacts of COVID 19 on the business, operations, assets, liabilities (actual or contingent), operating results or financial condition of Parent and Restricted Subsidiaries, taken as a Loan Party or Subsidiary for employees or (b) maintained pursuant to a collective bargaining agreementwhole, or other arrangement under which more than one employer makes contributions and to which a Loan Party or Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions. Pledged Collateral - as defined in Section 7.1.1. Pledged Debt - as defined in Section 7.1.1. Pledged Equity - as defined in Section 7.1.1. Pledged Securities - any Promissory Notes, stock certificates or other Securities, certificates or Instruments now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments or other documents representing or evidencing any Pledged Collateral. Post-Closing Side Letter - the post-closing side letter as of the date hereof among certain Loan Parties and Agentwill be disregarded.
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DOCPROPERTY DOCXDOCID. DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 Receivables Facility - an arrangement between Parent or a Restricted Subsidiary and another Person pursuant to which (a) Parent or such Debt Restricted Subsidiary, as applicable, sells (directly or drafts indirectly) in the Ordinary Course of the documentation relating Business to such Person Accounts owing from by customers, together with Receivables Assets related thereto, stating that (b) the obligations of Parent has or such Restricted Subsidiary, as applicable, thereunder are non-recourse (except for Receivables Purchase Obligations) to Parent and such Restricted Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith that such terms by Parent) and conditions satisfy the requirement may include Standard Receivables Undertakings. Receivables Purchase Obligation - any obligation of this clause (iii) shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such five (5) Business Day period (or such shorter period as Agent may agree a Restricted Subsidiary in its sole discretion) that it disagrees with such determination (including respect of Receivables Assets in a reasonable description of the basis upon which it disagrees)), (iv) the security agreements (taken Receivables Facility to purchase Receivables Assets arising as a whole) result of a breach of a representation, warranty or covenant otherwise, including as a result of receive or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such Debtparty. Receivables SPV - YRCW Receivables LLC, if applicablea Delaware limited liability company. Recipient - Agent, are substantially the same as any Lender or more favorable to the Loan Parties than the security documents governing the Term Debt orany Issuing Bank, as applicable, the UST Tranche A Facility Indebtedness and the UST Tranche B Facility Indebtedness, with such differences as are reasonably satisfactory to Agent, (v) no Event of Default shall exist immediately prior to or after giving effect to such incurrence, (vi) a representative acting on behalf of the holders of such Debt shall have become party to or otherwise subject to the provisions of the Term Debt Intercreditor Agreement or another intercreditor agreement in form and substance reasonably satisfactory to Agent and Administrative Borrower that contains terms substantially similar to the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms as determined by the Agent in good faith, and (vii) if applicable, the priority position of the holders of such Debt with respect to the Collateral under the Term Debt Intercreditor Agreement shall be equivalent or junior to the position of the holders of the Term Debt and all obligations under such Debt shall constitute Tranche B-2 Obligations under (and as defined in) the Term Debt Intercreditor Agreement, or the holders of the UST Tranche A Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche A Obligations under (and as defined in) the Term Debt Intercreditor Agreement or the holders of the UST Tranche B Facility Indebtedness and all obligations under such Debt shall constitute UST Tranche B Obligations under (and as defined in) the Term Debt Intercreditor Agreement, in each case as applicable. Notwithstanding the foregoing, Permitted Additional Debt shall include all Permitted Additional Debt (Reddaway - as defined in the preamble to this Agreement. Refinancing Transactions - the repayment of all amounts due or outstanding under or in respect of, and the termination of, the Existing Term Debt Agreement as Facility and the Existing ABL Facility, the release of all cash and other amounts restricted under or by the Existing Term Facility and the Existing ABL Facility and the termination and release of any and all commitments, security interests and guaranties in effect connection therewith on the date hereof)Closing Date. Permitted Discretion Register - Agent’s judgment exercised as defined in good faith and Section 13.3.3. Reimbursement Date - as defined in Section 2.3.2. Relevant Governmental Body - the exercise Federal Reserve Board and/or the Federal Reserve Bank of reasonable 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. Release - any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment. Report - as defined in Section 12.2.3. Reportable Event - any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (from 30) day notice period has been waived with respect to a Plan. Required Lenders - subject to Section 4.2, (a) Lenders holding in excess of fifty-one percent (51%) of the perspective of a secured asset-based lender) business judgment. Permitted Junior Debt - unsecured Debt incurred by any Loan Party in the form of one Commitments; or more series of unsecured notes or loans; provided, that (ib) if constituting Subordinated Debtthe Commitments have terminated, (A) such Debt (including any Guarantee thereof) is subordinated to the Obligations on terms customary for high yield subordinated debt securities or otherwise reasonably satisfactory to Agent and (B) the Obligations at all times constitute “Designated Senior Debt” (or comparable term) under the documents governing such Debt, (ii) such Debt does not mature or have scheduled amortization or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale, change of control or similar provisions or AHYDO “catch-up” payments), in each case prior to the date that is ninety-one (91) days after the then Latest Maturity Date, (iii) such Debt is not at any time guaranteed by any Person that is not a Loan Party and (iv) the other terms and conditions of such Debt (excluding pricing, fees, rate floors and optional prepayment or optional redemption terms), if different than the terms hereof, are customary market terms for Debt of such type (provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion), together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of the Lenders holding DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 documentation relating theretoFacility Exposure in excess fifty-one percent (51%) of the aggregate Facility Exposure. For the avoidance of doubt, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement of this clause (iv) no Defaulting Lender shall be conclusive evidence that such terms and conditions satisfy such requirement unless Agent notifies Parent within such five (5) Business Day period (or such shorter period as Agent may agree included in its sole discretion) that it disagrees with such determination (including a reasonable description the calculation of the basis upon which it disagrees))Required Lenders. Permitted Lien Resignation Effective Date - as defined in Section 10.2.112.8.1. Permitted Refinancing Resolution Authority - an EEA Resolution Authority or, with respect to any PersonUK Financial Institution, a UK Resolution Authority. Responsible Officer - the chief executive officer, president, vice president, chief financial officer, treasurer, assistant treasurer, director of treasury or other similar officer of a Loan Party and, as to any document delivered on the Closing Date, any modificationsecretary or assistant secretary of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed by the recipient of such document to have been authorized by all necessary corporate, refinancingpartnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed by the recipient of such document to have acted on behalf of such Loan Party. Restated Term Debt Agreement - that certain Amended and Restated Credit Agreement, refundingdated as of September 11, renewal2019, replacement by and among the Loan Parties, Cortland Products Corp. (n/k/a Alter Domus Products Corp.) and the lenders party thereto, as amended by that certain Amendment No. 1 to the Amended and Restated Credit Agreement, dated as of April 7, 2020, as further amended by that certain Amendment No. 2 to the Amended and Restated Credit Agreement, dated as of July 7, 2020, and as further amended, restated, amended and restated, supplemented or extension otherwise modified from time to time in accordance with this Agreement and the Term Debt Intercreditor Agreement. Restricted Payment - any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of Parent or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any Debt such Equity Interest of Parent or any Restricted Subsidiary, or on account of any return of capital to Parent’s or a Restricted Subsidiary’s stockholders, partners or members (or the equivalent Persons thereof). Restricted Subsidiary - any Subsidiary of Parent other than an Unrestricted Subsidiary. The Restricted Subsidiaries as of the Closing Date are identified on Schedule 9.1.11. Rolling Stock - any railroad car, locomotive, stacktrain or other rolling stock, or accessories used on such Personrailroad cars, locomotives or other rolling stock (including superstructures and racks); provided, that (a) the original aggregate principal amount of such Debt (Rolling Stock shall exclude Tractor Trailers. Sale and Leaseback Transaction - any arrangement, directly or accreted valueindirectly, if applicable) does not exceed the aggregate principal amount (whereby a seller or accreted valuetransferor shall sell or otherwise transfer any real or personal property and then or thereafter lease, if applicable) of the Debt so modifiedor repurchase under an extended purchase contract, refinanced, refunded, renewed, replaced conditional sales or extended except (i) by an amount equal to accrued but unpaid interest, premiums and fees payable by the terms of such Debt and reasonable fees, expenses, original issue discount and upfront fees incurred in connection with such modification, refinancing, refunding, renewal, replacement or extension and (ii) by an amount equal to any existing available commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Debt permitted pursuant to Section 10.2.3(e)title retention agreement, the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Debt being modified, refinanced, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Debt permitted pursuant to Sections 10.2.3(e), at the time thereof, no Event of Default shall have occurred and be continuing and (d) if such Debt being modified, refinanced, refunded, renewed, replaced or extended is Debt permitted pursuant to Section 10.2.3(b) or 10.2.3(r), or is otherwise a Junior Financing, (i) to the extent such Debt being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment or in lien priority to the Obligations, the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment or in lien priority, as applicable, to the Obligations on terms (taken as a whole) (x) at least as favorable to Lenders as those contained in the documentation governing the Debt being modified, refinanced, refunded, renewed, replaced or extended (provided, that a certificate of a Responsible Officer of Parent delivered to Agent at least five (5) Business Days prior to the incurrence of such Debt (or such shorter period as Agent may agree in its sole discretion), together with a reasonably detailed description of the material terms and conditions of such Debt or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless Agent notifies Parent within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)) or (y) otherwise reasonably acceptable to Agent, (ii) the obligors (including any guarantors) in respect of the Debt resulting from such modification, refinancing, refunding, renewal, replacement or extension shall not include any Person other than the obligors (including any guarantors) of the Debt being modified, refinanced, refunded, renewed, replaced or extended unless otherwise permitted hereby, and (iii) in the case of any Permitted Refinancing in respect of the Term Debt, UST Tranche A Facility Indebtedness or UST Tranche B Facility DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 11055505v9 Indebtedness, any Term Refinancing Debt, any UST Tranche A Refinancing Debt, or any UST Tranche B Refinancing Debt, such Permitted Refinancing is secured, if at all, only by all or any portion of the collateral securing the Term Debt, the UST Tranche A Facility Indebtedness or the UST Tranche B Facility Indebtedness, as applicable (but not by any other assets) pursuant to one or more security agreements subject, in the case of assets constituting (or required to constitute) Collateral, to the Term Debt Intercreditor Agreement or any replacement intercreditor agreement reasonably satisfactory to Agent, that contains terms substantially similar to the Term Debt Intercreditor Agreement or other intercreditor agreement on market terms as determined by the Agent in good faith. When used with respect to any specified Debt, Permitted Refinancing shall mean the Debt incurred to effectuate a Permitted Refinancing of such specified Debt. Person - any individual, corporation, limited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity. Plan - an employee pension benefit plan (other than a Multiemployer Plan) that is either (a) maintained by a Loan Party or Subsidiary for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which a Loan Party or Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions. Pledged Collateral - as defined in Section 7.1.1. Pledged Debt - as defined in Section 7.1.1. Pledged Equity - as defined in Section 7.1.1. Pledged Securities - any Promissory Notes, stock certificates or other Securities, certificates or Instruments now or hereafter included in the Pledged Collateral, including all Pledged Equity, Pledged Debt and all other certificates, instruments or other documents representing or evidencing any Pledged Collateral. Post-Closing Side Letter - the post-closing side letter as of the date hereof among certain Loan Parties and Agentsame property.
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